Standing Committee E

[Mr. Joe Benton in the Chair]

Domestic Violence, Crime and Victims Bill [Lords]

Clause 1 - Breach of non-molestation order to be a criminal offence

Amendment proposed [this day]: No. 2, in page 2, line 1, leave out 'existence' and insert 'terms'.—[Mr. Grieve.] 
 Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we are discussing the following amendments: No. 78, in page 2, line 1, leave out 'existence' and insert 'content'.
 No. 26, in schedule 7, page 41, leave out lines 14 to 16 and insert— 
 '''(4A) A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b) and, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, must use the power conferred by subsection (2)(b) to make a non-molestation order.''.'. 
No. 17, in schedule 7, page 41, line 14, leave out from 'shall' to end of line 16 and insert 
'use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child'.

Dominic Grieve: Welcome to the Chair, Mr. Benton, and to the proceedings of this Committee. They were most enjoyable this morning and will, I hope, continue to be so this afternoon.
 I was making a point this morning about the relationship between the civil and criminal proceedings and how the Bill would affect those. After I sat down, the Minister kindly indicated that a comment that he had made earlier in response to the hon. and learned Member for Redcar (Vera Baird) had potentially given a misleading impression as to what elements of the civil procedure would survive in future. 
 If I understand this important matter correctly, we will be invited by the Government to amend schedule 7 to delete entirely the power of arrest in civil proceedings, as it is considered no longer to be necessary because there is a general power of arrest associated with the breach of the non-molestation order. At the risk of taking slightly more time in responding to that than necessary—the Minister may wish to intervene, or we may wish to deal with the 
 matter at a later stage—let me say that it highlights the extent to which the civil procedure is disappearing down the plughole of history. 
 Let us consider that for one moment. If no power of arrest is attached to a non-molestation order and the person breaches it, the only avenue for revisiting the matter must be for the case to go to the magistrates court. As far as I can see, in those circumstances there will not even be a power for the police physically to take a person from detention at a police station back to the county court, although I suppose that if the victim were to issue a summons in the county court and serve it on the police when the person was in police custody, the police might be under an obligation—as they are in any other civil proceedings—to produce the prisoner at the county court, but not because of the breach of any order. 
 If I have understood correctly, and we are going to delete the power of civil arrest, perhaps the Minister will explain, either now or on clause stand part, how there will ever be a power to produce someone coercively at the county court thereafter for the breach of an order. I do not think that there will be such a power. It will be finished. The hon. and learned Member for Redcar suggested that civil proceedings for contempt would henceforth be a dead letter. 
 I hope that the Government have thought that through, because if that is the consequence, as the hon. and learned Lady said, circumstances that might better be visited by contempt proceedings will inevitably have to be dealt with through the criminal justice system. That would cause me some anxiety. I can see the logic of the Government's getting rid of the power of arrest in contempt proceedings and attaching the non-molestation order, but that must mean that the civil judge's jurisdiction ends with the order and thereafter he will never be seized of the matter again, except insofar as it relates to other domestic proceedings for which he may have responsibility. 
 I do not intend to press these matters any further. However, I will think about them, because I am concerned that the full implications of the measure for the civil jurisdiction of the county court and the civil courts generally have not been addressed entirely. If the civil judge has no power to order the arrest and subsequent production of a defendant appearing before him for contempt, contempt proceedings must effectively be at end. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Cheryl Gillan: I beg to move amendment No. 79, in page 2, line 9, leave out '5 years' and insert '1 year'.

Joe Benton: With this it will be convenient to discuss amendment No. 80, in page 2, line 11, leave out '12 months' and insert '6 months'.

Cheryl Gillan: I, too, welcome you to the Chair, Mr. Benton. I hope that we shall be as easy—and as good-humoured—a Committee as you have ever chaired, after this morning.
 Making breaches of non-molestation orders punishable by a maximum five-year sentence makes all breaches arrestable, irrespective of whether a judge may have thought that the circumstances required there to be a power of arrest, but not all organisations believe in that. One of the organisations that I have talked to is Liberty, which is concerned about some of the ongoing moves that blur the distinction between civil and criminal law. Given that a non-molestation order is issued on the basis of a civil burden of proof, Liberty feels that it is inappropriate for a criminal sanction to apply for a breach. However, if feels that if such an offence is to be created, the proposed maximum sentence in the Bill is disproportionate and that no offence should be deemed to have been committed if the person was unaware of the terms of the order. 
 These simple probing amendments would have the effect of reducing the maximum custodial sentence to 12 months on indictment and six months on summary conviction, and of ensuring that individuals who were aware of the existence of the order but not of its terms would not be subject to prosecution. They give us a device whereby we can look at why the Government have decided on five years and 12 months. I look forward to the Minister's explanation.

Paul Goggins: Like the hon. Member for Chesham and Amersham (Mrs. Gillan), I welcome you to the Committee and our deliberations, Mr. Benton. The Opposition clearly wish to hear our reasoning for these offences, which I shall set out.
 Amendments Nos. 79 and 80 would reduce the maximum penalties for the criminal offence of breach of a non-molestation order as set out in clause 1. Amendment No. 79 would reduce the maximum penalty for conviction on indictment from five years' imprisonment to one year while amendment No. 80 would reduce the maximum penalty on summary conviction from 12 months to six. 
 The Government believe that the proposed maximum sentences in the Bill are the right ones and that the five-year maximum penalty for conviction on indictment sends a strong and clear message to domestic violence offenders that the courts will treat breaches of orders seriously. As well as reflecting the seriousness of domestic violence, the fact that the maximum penalty will be five years also means that under the terms of section 24(1)(b) of the Police and Criminal Evidence Act 1984 the offence is one where the police can arrest for breach without the need for an arrest warrant. We have taken that step in response to the concerns raised in the consultation exercise on the ''Safety and Justice'' domestic violence consultation paper. 
 Many respondents to that paper pointed out that there is considerable confusion on the enforcement of non-molestation orders where the police's power to arrest can sometimes be unclear. Under the Family Law Act 1996 the court can attach a power of arrest to some, all or no parts of the order and the police can 
 arrest without a warrant only for those parts that have a power of arrest attached, otherwise a warrant needs to be issued by the courts. That can clearly lead to problems at the scene of an alleged breach of an order where it can be unclear what the police's arrest powers are. 
 Our proposal in clause 1 removes that uncertainty by ensuring that the police can always arrest for breach without the need for a warrant: a considerable improvement in the protection for domestic violence victims. While I am sure that it is not the intention of those who have tabled the amendment, if it were accepted it would leave the police with less power to protect victims. I hope that the hon. Lady is reassured by the Government's thinking and that she will withdraw the amendment.

Cheryl Gillan: I thank the Minister for that reply, and I agree with most of what he said. These amendments were tabled because it is right that all organisations should have their voices heard in this Committee, and because I felt that the Minister should have a chance to put on the record the explanations for these terms, which will provide victims of domestic violence with a great deal of comfort and more protection than they have had in the past.

Dominic Grieve: It seems to me that the Minister has made a powerful case, as it requires the five-year sentence to make the offence arrestable. However, I have a residual anxiety—which I know my hon. Friend might share—about how the police will in practice establish criteria as to how to proceed. It would be a dangerous procedure if there were a substantive offence such as a serious assault and the police were just to proceed for the breach and not for the actual offence, but that is a matter that should be dealt with by ordinary prosecuting guidelines.

Cheryl Gillan: I share my hon. Friend's concern. This should not be seen as an alternative to pursuing the criminal offence itself. However, in light of my remarks and the fact that the Minister has given consideration to these two terms in the Bill, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Paul Goggins: I would not normally address the Committee at this stage, but in view of some comments that I made this morning I feel that it might be appropriate if I did so. My hon. and learned Friend the Member for Redcar gave me a choice of one from three and I managed to get it wrong. If I set the record straight that might help her and other Committee members.
 First, I will recap. Victims will still go to the civil courts to seek a non-molestation order. However, clause 1 makes any breach of a non-molestation order an arrestable criminal offence to be dealt with by the criminal courts, and therefore there is no longer the power or the need for the courts to attach a power of arrest. 
 I was asked what action could be taken in relation to the breach with regard to the person who is protected by the order. Broadly speaking, there are two options. First, the police could be called and, because of the maximum five-year imprisonment on conviction, the police will automatically have the power of arrest for any breach of the terms of a non-molestation order. That will overcome one of the major difficulties, which is that the police are not certain what their powers of arrest are. The decision on whether to prosecute for the breach will be for the police and the Crown Prosecution Service—always, of course, in consultation with the victim herself. If the decision is not to prosecute for a criminal offence, the victim can still pursue an action through the civil court and breach remains contempt with the same penalties available as now. 
 The second option is to pursue the civil route. The victim may decide that they do not want to involve the police at all. In those circumstances, the victim will still be able to apply to the civil court for a warrant of arrest if the molestation order is breached, and to have the perpetrator arrested and brought back to the county court for the judge to decide what should happen.

Dominic Grieve: I might be interrupting the Minister prematurely, but is there not a danger with this? The person who sees a molestation order being breached will want something to be done about it, and the obvious thing to do is to call the police, but, under this system, what happens after they have called the police? I accept the Minister's point that the police may consult with the victim about what they want done, but once they have done that, a process that appears to lead inexorably to prosecution is cranked up. We may end up with a situation where victims are less ready to call the police than they were under non-molestation orders with a power of arrest precisely because they fear the consequences of doing so in terms of the person who is breaching the order.

Paul Goggins: That is why the civil route must remain open. The hon. Gentleman has hinted several times that there might be a rebalancing between civil and criminal in the system. That is entirely in keeping with the spirit of this legislation, which is to empower and protect the victim on the one hand while also sending out a very clear message that Parliament—and the country—regards with increasing seriousness crimes associated with domestic violence and intends the penalties to be heavy and the protection to be stronger. There may be some rebalancing, and that would be entirely right.
 My hon. and learned Friend the Member for Redcar asked whether another method of enforcement—route A in her summary of the three options—would remain open, where the county court attaches a power of arrest to all or part of a non-molestation order, which means that the police can arrest for breach without a warrant and bring the perpetrator back to the county court to be dealt with by the judge. As breach of an order will always be an arrestable offence, under clause 1, the Bill removes that method of enforcement. If it were retained, it would put the police in a difficult 
 position because they would be unsure whether the perpetrator should be taken to the county court after arrest or charged and brought to the magistrates court. Option A, rather than option C, is the one that goes. I hope that helps to clarify the position. 
 Question put and agreed to. 
 Clause 1 ordered to stand part of the Bill.

Clause 2 - Additional considerations if parties are cohabitants or former cohabitants

Cheryl Gillan: I beg to move amendment No. 29, in page 2, line 22, leave out subsection 2 and insert—
 '(2) In Part 4 of the Family Law Act 1996 leave out subsections 35(10), 36(10), 37(5), and 38(6) and replace each of these subsections with
 ''( ) an order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.''.'.

Joe Benton: With this it will be convenient to discuss the following:
 New clause 1—Removal of anomalies in relation to cohabitants— 
 'Part 4 of the Family Law Act 1996 is amended as follows. 
 (1) Leave out section 41 
 (2) For section 35(10) substitute— 
 ''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''. 
 (3) For section 36(10) substitute— 
 ''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''. 
 (4) For section 37(5) substitute— 
 ''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.'. 
 (5) For section 38(6) substitute— 
 ''An order under this section may, in so far as it has continuing effect, be made for a specified period until the occurence of a specified event or until further order;''.'. 
New clause 12—Duration of occupation orders— 
 '(1) In Part 4 of the Family Law Act 1996 (c.27) (family homes and domestic violence), for section 35(10) (one former spouse with no existing right to occupy) substitute— 
 ''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.'' 
 (2) For section 36(10) (one cohabitant or former cohabitant with no existing right to occupy) substitute— 
 ''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.'' 
 (3) For section 37(5) (neither spouse entitled to occupy) substitute— 
 ''(5) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.'' 
 (4) For section 38(6) (neither cohabitant or former cohabitant entitled to occupy) substitute—
 ''(6) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

Cheryl Gillan: Clause 2 repeals section 41 of the Family Law Act 1996, which provides that where the court has to consider the nature of the parties' relationships, it must have regard to the fact they have not given each other the commitment involved in marriage. The clause also amends section 36 of that Act, which permits the court to make an occupation order in favour of the cohabitant or former cohabitant with no existing right to occupy the property.
 The amendment would provide for the court to consider the commitment when looking at the overall relationship. It would remove the differences in rights to protection for occupation orders available to cohabitants who are not entitled, and will still leave the courts with their full discretion. It was suggested by Women's Aid and I am sure that members of the Committee will support it. 
 Women's Aid welcomes clause 2(1), the repealing of section 41, but clause 2(2) as drafted will require courts to consider the commitment in a relationship when considering whether to issue an occupation order to a current or former cohabitant with no existing right to occupy. In the other place, Baroness Scotland stated: 
''It was not our intention to include long-term platonic friends or the briefest of sexual encounters''.——[Official Report, House of Lords, 19 January 2004; Vol. 656, c. GC248.] 
Part IV of the Family Law Act is concerned with relationships of some standing, where the opportunity for abuse and control is greater. Other remedies exist for those not in relationships of standing, for example the Protection from Harassment Act 1997 and the general criminal law where an offence has been committed. However, Women's Aid believes that someone who is a victim of domestic violence from their cohabitee should be able to obtain an occupation order regardless of the level of commitment involved in their relationship with the abuser. Part IV of the 1996 Act already enables the courts to use their discretion, based on the assessment of a range of salient factors, including the length of the relationship and the balance-of-harm test. 
 In respect of the other provisions relating to cohabitants under part IV of the 1996 Act, non-molestation orders are equally available regardless of marital status and may be made for a specified period, for example, six months or until further order. However, that is not the case with occupation orders that regulate the occupation of the family home in cases of domestic violence. At present, all victims of domestic violence do not have equal access to protection because of the legal differentials regarding the nature of their relationship. 
 The Family Law Act 1996 distinguishes between spouses or former spouses and cohabitants or former cohabitants and parties entitled to occupy a property and those not entitled to occupy a property. It states that an occupation order should initially be for a period of a maximum of six months; for spouses a 
 court may extend the order on one or more occasions for a further period of not more than six months if the applicant's spouse is not entitled to occupy the property or if neither spouse is entitled to occupy the property. 
 For cohabitants not entitled to occupy the property, a court can extend the order only once for a further period of not more than six months. In the years since the enactment of the Family Law Act, that provision has created hardship and inequitable treatment for some non-entitled cohabitants and their families who have experienced domestic violence. For cohabitants who do not hold legal title as tenant or owner, occupation orders can be issued only for a maximum of 12 months; they last for up to six months on first application and thereafter there can be one extension of six months on further application. For example, under the present law, an abused woman who has directly contributed to, or even fully met, the costs of the family home by making rent or mortgage payments for many years cannot obtain an occupation order for more than a year simply because she is not married to the legal tenant or owner. The children of the family of such a long-standing relationship may also be deprived of access to the family home after a year if they and the non-abusing parent—the victim of domestic violence—are forced to leave it. 
 In the other place, Baroness Scotland stated: 
''it is just for the law to reflect the difference in the relationship and the likely complexity of financial and property arrangements in the way in which it makes occupation orders''. 
She noted that ''ancillary relief proceedings'' can deal with 
''questions of divisions of property''.—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 861.] 
 However, Women's Aid believes that not only is the current law discriminatory, but it will continue to be unfair to some victims who are cohabitants and who are not entitled in this way under part IV of the 1996 Act; that includes same-sex couples. Proceedings for ancillary relief and a resolution of interest in the property for cohabitees of a long-standing relationship may take longer than one year to resolve. 
 As I said, the amendment removes the differences in rights to protection through occupation orders that are available to cohabitants who are not entitled and it will still leave the courts with their full discretion. The legislative limitation on the length of the occupation order is not reasonable, given that its removal would not impose any new duty on the courts. They still have complete discretion on whether to grant an order and on the length of the order, according to the facts and circumstances of the case. 
 As the Minister will know, Baroness Scotland of Asthal also stated in a Lords debate that: 
 ''The court should be free to determine the length of the order, depending on the facts of the case, and providing what it considers to be the right length of protection.''—[Official Report, House of Lords, 19 January 2004; Vol. 656, c. GC222.] 
The amendment supports that position. It removes the limitation that the courts are able to grant an order for a maximum of six months, which can be extended only on further application. It recognises that victims and survivors responding to the Government 
 commissioned consultation on ''Safety and Justice'' overwhelmingly highlighted the need for orders to be issued for at least one year, rather than for short periods, because harassment and assaults can continue after the separation for many years. 
 The issuing of so many short-term orders and the requirement to return to court for extensions is a waste of public resources—through legal aid. In the other place, it was stated that: 
''occupation orders are meant to offer . . . short-term protection''.—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 861.] 
That is not the experience of the victims of domestic violence and it does not acknowledge the problems that are faced by practitioners and by voluntary organisations that are working in domestic violence: the orders can be too short to enable the victim, or the person who needs to be protected, to set up a new life that is satisfactory for her and her children. 
 Occupation orders that are granted until further order or until a specific event, such as the resolution of any disputes and other proceedings regarding claims on the property for non-entitled applicants, would still allow respondents to make an application to vary the order. However, it would reduce repeat visits to court by the victim where short time-limited orders are granted and would reduce the needless waste of public resources that occur through repeated legal aid applications. 
 The current thrust of public policy is to encourage approaches to domestic violence that enable the victim, and any children, to stay protected in the family home and to remove the perpetrator. An amendment that widens opportunities to assist that objective without fettering the discretion of the courts on the length of orders would be preferable to the current legal limitation on the length of such orders for cohabitants. I look forward to hearing the Minister's comments.

Sandra Gidley: New clause 12 is a slightly different attempt to get round the same problem. Both the measures that we are discussing are variations on what emerged in the other place. As described by the hon. Member for Chesham and Amersham, non-molestation orders are equally available regardless of marital status and may be made for a specified period or until a further order. That is not the case for occupation orders. I welcome the changes that have been made so far, which get rid of the discrimination between married couples and non-cohabiting couples, but we can still improve things a little further. The problem at the moment is that with the exception of where an applicant is entitled, the occupation orders cannot be issued to cohabitants for longer than a year. They run initially for six months, with the possibility of their being extended for up to a year.
 Baroness Scotland of Asthal said in the other place that, when making an occupation order, the level of commitment involved in a relationship should be taken into account, rather than the courts being required to look at the fact that the couple had not married. She did not
''wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c.860.] 
Although the one-night stand or the short-term relationship is relatively easy to understand, there are cases where women have been contributing to the family home and possibly paying a part, or all, of the mortgage, but have not got around to regularising the situation. Not everybody works like that. Sometimes there can be a psychological pressure on the woman, with the partner saying that that was not important and did not mean that he loved her any the less, and so on. 
 A number of instances are missed, because although there is an ongoing relationship, the entitlement is lacking. It would be much simpler if the courts had complete discretion over the duration of an order and could adapt it according to particular circumstances. If the Government are not minded to go head first and totally adopt those principles, our amendment would allow for an extra extension of six months, because a number of instances cannot happily be resolved in a year. If the period were extended by an extra six months, thereby giving a total of 18 months, it could be possible for more cases to be brought to a happy resolution. 
 I am sympathetic to the Conservative amendments and look forward to the Minister's response.

Paul Goggins: Let me deal first with the first part of new clause 1, which proposes the repeal of section 41 of the Family Law Act 1996. That section requires the court, when it is considering the nature of the relationship between the parties, to have regard to the fact that they have not given each other the commitment of marriage. The Government accepted arguments in the other place that section 41 was no longer relevant and should be repealed. We proposed an amendment to repeal that section and amend section 36(6)(e) of the same Act, to include a reference, which the court must consider, to the level of commitment between the parties. That amendment struck the right balance between the repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. The amendment was accepted and is now clause 2. The good news for those who are pursuing that line is that section 41 of the 1996 Act is repealed and replaced by clause 2.
 The second part of new clause 1, amendment No. 29 and the whole of new clause 12 would standardise the length of occupation orders made under sections 33 and 35 to 38 of the 1996 Act, but in slightly different ways. Under new clause 1 and amendment No. 29, the court would be free to make the order for a specific period, or until a specified event or a further order. As we have heard, under new clause 12 the initial order would be for a specified period of six months, but could be extended for a further period of six months on two occasions, unless an application is made to discharge the order. 
 At the moment, the 1996 Act provides that, if the applicant for an occupation order is legally entitled to occupy the home or has matrimonial rights in relation 
 to the home, no limits should be set on the duration of an order. That applies irrespective of whether the applicant is married or cohabiting. 
 Most spouses are legally entitled to occupy, or have matrimonial home rights, and many cohabitants are also legally entitled to occupy. However, if the applicant is not entitled to occupy the home, or does not have matrimonial home rights, the Act provides that an occupation order should initially be made for a maximum period of six months. It then draws a distinction between spouses, or former spouses, and cohabitants, or former cohabitants. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property, or if neither spouse is entitled to occupy the property. For cohabitants not entitled to occupy the property, it says that there may be one extension for a further period of not more than six months. The Act draws a distinction between spouses with no entitlement to occupy a property and cohabitants with no entitlement to occupy a property, to reflect the different levels of commitment involved in marriage and cohabitation. If a cohabitant is legally entitled to occupy a property, the Act makes no distinction between spouses and cohabitants in the provisions on the length of the order. 
 In Committee in the other place, the Government acknowledged that those two relationships can often be very similar, but they are in fact quite different in their structure and implications for property rights. Many people who do not marry wish to keep their property rights separate. That is not a reflection of the validity of the relationship, but simply of the fact that the legal relationship between a cohabiting couple can be different from that l between a married couple. It follows, as my noble Friend Baroness Scotland said, that it is just for the law to reflect the difference in relationships, and the likely complexity of financial and property arrangements, in the way in which it makes occupation orders. 
 New clause 1 would remove all the 1996 Act's limits on the length of occupation orders, leaving the length of the order—be it for a specific period, until a specified event or until a further order—to be determined entirely by the court. The court's powers on occupation orders are already extremely far ranging: for example, a court can regulate the occupation of the home, prohibit or restrict the occupation rights of one party, require the party to leave the home or exclude the party from a defined area around the home. Given those wide-ranging powers, I believe it is right that there should be restrictions on the court as to how long the order may last and how it may be renewed. 
 Members should remember that occupation orders are meant to offer what, we hope, will need to be only relatively short-term protection; they should not be used as a long-term substitute for ancillary relief proceedings, in which questions of the division of 
 property can be properly considered. The orders are intended as a short-term measure, not a long-term solution. In that spirit, I ask that the amendment be withdrawn.

Cheryl Gillan: I have listened carefully to the Minister, and I shall ask for the leave of the Committee to withdraw the amendment. However, it is a shame that an amendment that would widen opportunities and encourage approaches to enable the victim and any children to stay protected in the family home is not to be pursued. It is a shame that the Minister could not see his way to liberating the courts on the question of the length of orders. However, I will reflect on what he has said and withdraw the amendment on the basis that we may wish to revisit the issue on Report. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - ''Cohabitants'' in Part 4 of 1996 Act to include same-sex couples

Question proposed, That the clause stand part of the Bill.

David Heath: Welcome to the Committee, Mr. Benton. I welcome the clause and have no argument with it. However, I will ask the Minister a couple of questions, because I want to be satisfied that the clause will have the effect that we hope for.
 My first question is, what does the Minister consider will be the interplay between this legislation and the Civil Partnership Bill? Does he anticipate that there will be further amendment to this Bill via the avenue of the Civil Partnership Bill in order to make the relationship between the two pieces of legislation clear, or should we expect amendments to this Bill to reflect the new status that I understand is being provided in that legislation? 
 My second question is a genuine one, because I want to be absolutely sure in my own mind about this. Has any thought been given to whether the phrase ''in an equivalent relationship'' might present any problems of interpretation? The phrase raises this question: what precisely is the equivalent relationship to a husband and wife in terms of cohabiting couples? Is it possible for someone to attempt to argue a distinction in law between a same-sex couple and the equivalent relationship in terms of a husband and wife on the basis that it is equivalent to some other form of cohabiting relationship and not to that of a marital relationship? 
 That may be a point that is not worth considering, but I would hate for there to be a legal argument that could be adduced on that basis that had not been thought of at this stage, and which could be corrected by rewording part of the clause. I know what the Minister's intention is, and I share it entirely; I simply want to make sure that the words reflect it.

Paul Goggins: The spirit of the discussion of this clause is again one of consensus. The clause has never been contentious, and nor is it now with the questions that the hon. Gentleman has asked.
 The hon. Gentleman's second question was about equivalent relationships. I will need to go away and look into that a little further, but clearly there will be distinctions between married couples, cohabiting couples and so forth, and those distinctions will need to be made clear in any legislation considered by this House. When I have looked into the matter, I will speak or write to the hon. Gentleman to try to reassure him. 
 On the interplay between this legislation and any legislation on civil partnerships, we will need to have coherence and compatibility, but it is not our intention to introduce any further amendments to this Bill to address that. 
 Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Extension of Part 4 of 1996 Act to non-cohabiting couples

Cheryl Gillan: I beg to move amendment No. 15, in
clause 4, page 2, line 35, leave out from 'other' to end of line.

Joe Benton: With this it will be convenient to discuss Amendment No. 31, in
clause 4, page 2, line 35, leave out 'significant duration' and insert 
 'such significance as to justify the making of an order'.

Cheryl Gillan: This, too, is a probing amendment to attempt to discover the thinking behind the drafting of clause 4. In recognition of the complexities of relationships, the clause extends the use of non-molestation orders to people who have never been married or who have never even cohabited; they are extended so that they apply to homes that the parties have either lived in or intended to live in.
 The clause widens the definition of associated persons through proposed new paragraph (ea), which states that 
''they have or have had an intimate personal relationship with each other which is or was of significant duration''. 
In seeking to probe further the nature of these relationships and the reasons for the inclusion of duration as a test, I ask the Minister to run through his definitions or examples of such relationships. Because of what was said in the other place and what is in the notes on clauses, I presume that one-night stands are ruled out. However, the notes on clauses also exclude platonic friends, while covering 
''a long-standing relationship which may, or may not, be a sexual relationship'' . 
I would be interested to hear how the Minister thinks that the court will make that judgment and what standard of proof will be applied, and whether it is possible to make that fine judgment between what is essentially a platonic relationship and an intimate personal relationship. The difference that he draws between the two will be interesting. 
 Why is duration included here at this stage, as it does not apply to other family members associated either by blood or by affinity? What in the Minister's mind will constitute significant duration as opposed to long-standing duration, for example? If the Minister's interpretation of ''significant'' could be shared with the Committee, we would all be grateful.

Sandra Gidley: Amendment No. 31 is a variation because we too have concerns about the clause as drafted. The Bill uses the phrase
''which is or was of significant duration'' 
in respect of a personal relationship. I agree entirely with the hon. Member for Chesham and Amersham that we need a definition of the word ''significant''. Do we have to wait for case law to build up just because the Minister in the other place seems to think that one-night stands should not be covered? 
 It could be that any violence in such a situation is covered by other legislation, such as the law on assault or rape. However, we are talking about an in-between area. Some people have short but nevertheless very intense relationships. The problem we are facing is that if a person—it is usually a man—abuses, he does not do it in only one situation but will repeat it time and again with other partners. They are rarely one-off instances; it is part of the character. 
 I am concerned that there could be some sort of gentleman capable of attracting women and getting them to move in with him for short periods of time but during that time, which may not be regarded as being of significant duration, having an abusive relationship and then moving on to the next one. It is very difficult to catch up with a person in such circumstances. We would prefer the wording 
''such significance as to justify the making of an order'',
 because it would give the court a little flexibility to take such situations into account.

Paul Goggins: It is fairly clear that the Government's intention in clause 4 is to close a significant loophole in the protection afforded by the Family Law Act 1996 by including within it non-cohabiting couples. The aim was to include intimate personal relationships of significant duration. We could probably spend the rest of our 10 sittings discussing what precisely that might mean to each of us. In the Bill we define it in the broadest terms, and of course it will be for the court in individual circumstances to determine whether it applies in a particular case.
 It certainly is not our intention to include long-term platonic friendships.

Sandra Gidley: That is the very point that concerns some of us. We have all read judicial agreements to which we take great exception and we wonder what on earth the judge may have been thinking of. I hesitate to offend all the judiciary, but at present we are faced with a judiciary that is predominantly male, older and of a different generation, who perhaps even have a slightly different attitude towards domestic violence. I am concerned that the attitude of somebody with that background might be different from that of somebody younger, who has been brought up with the attitude
 that domestic violence in any form is unacceptable. How would he address that problem? We do not want to see headlines in the Daily Mail or elsewhere questioning judgments, when there are no clear guidelines.

Paul Goggins: It is of course essential that the judiciary receive appropriate training in relation to specific legislation, and more generally. The hon. Lady will be clear as, I am sure, are all members of the Committee, that it is for Parliament to set out the legislative framework, and it is for the courts to interpret in specific circumstances whether a particular offence has been committed. It would be inappropriate for Parliament to try to determine in every Bill every set of circumstances in which the law might apply. That is the relationship between Parliament and the judiciary, and it will not be changed in this piece of legislation. The Government place great emphasis on training for the judiciary—it is extremely important.
 It is not our intention to include either long-term platonic friendships or brief sexual encounters, such as one-night stands. The Family Law Act 1996 is concerned with relationships of some standing, in which the opportunity for abuse and control—which is at the heart of our concerns in the Bill—is at its greatest. For short or non-intimate relationships, the Protection from Harassment Act 1997 is available.

Cheryl Gillan: I agree entirely with the Minister that we are considering long-standing relationships. Why, then, rule out platonic relationships? They could be the very relationships to which he is referring.

Paul Goggins: Because we feel that both elements—intimacy and significant duration—should be considered by the courts. Both should be captured in the offence. Platonic relationships should not, therefore, be included. Intimacy and duration are the key elements.
 As the clause is drafted, having determined that there was an intimate personal relationship, the court would go on to decide whether that relationship was of a significant duration. Amendment No. 31 would replace significant duration with 
''such significance as to justify the making of an order''. 
That would offer the court more latitude in considering the length of a relationship and might allow very short-term relationships to be covered—inappropriately, in our view. As I said, we do not want the clause to apply to couples in short-term relationships such as one-night stands. As drafted, it offers the best formulation to ensure that orders are compatible with the intention of the Family Law Act 1996. 
 Amendment No. 15 would remove the caveat in clause 4 that a non-cohabiting couple would have to be in a relationship of significant duration before a non-molestation order could be granted. It would allow anybody who had had an intimate relationship with another person, no matter how brief and including a 
 one-night stand, to seek and gain orders under the Family Law Act 1996. That would be a fundamental shift in the scope of the Act, which deals with relationships of standing, and issues of abuse and control within them. Other avenues for protection exist for those who are not in relationships of standing—for example, the Protection from Harassment Act 1997 and the general criminal law. 
 In the circumstances described by the hon. Member for Chesham and Amersham and others, there are other forms of legal redress. The Bill deals with domestic violence in specific circumstances, in which intimacy and the duration of the relationship are both relevant. I hope that, now that I have outlined the Government's thinking behind the clause, hon. Members will not press their amendments.

Cheryl Gillan: The Minister is right: we could probably use every one of the 10 sittings to consider the meanings of the terms used in clause 4. However, I maintain that restricting the scope for interpretation by including
''which is or was of significant duration'' 
unnecessarily fetters the courts. If, as in other parts of the Bill, the aim of the clause is to leave things to the discretion of the courts, this would have been a sensible set of guidelines for judges undergoing their specific training. However, we do not have to shut down this area completely—or change it in a way that creates a possible loophole, because somebody could say that a relationship was not of significant duration. 
 This was a probing amendment, and I have listened carefully to what the Minister has said. We may want to visit this matter again, but for now I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - The offence

David Heath: I beg to move amendment No. 37, in
clause 5, page 2, line 39, after 'dies', insert 'or is seriously harmed'.

Joe Benton: With this it will be convenient to discuss the following amendments:No. 38, in
clause 5, page 3, line 5, after 'death', insert 'or serious harm'. 
No. 39, in 
clause 5, page 3, line 20, after 'death', insert 'or serious harm'. 
No. 40, in 
clause 5, page 3, line 30, after 'death', insert 'or serious harm'.

David Heath: We come to a critical part of the Bill that covers the creation of a new offence to deal with the mischief of where a child has died in the care and protection of more than one person and where it is clear that one of those people has committed a very serious offence—a murder, in the case of the death of a child—and yet it is impossible to determine which of them dealt the fatal blow. That lacuna in the law has been identified for a long time; it is well documented.
 This group of amendments will not greatly surprise anybody, because it has been well advertised by the National Society for the Prevention of Cruelty to Children and other organisations. It proposes to revert to part of the formulation that was encompassed by the Law Commission in its report on this subject, which went beyond the position of death to that of serious harm. 
 I seek to do that because very often what has occurred is a series of events that may or may not cause the death of a child but that is extremely serious in itself. It is inconceivable that we should wish to ignore circumstances in which, for instance, a child has been so badly beaten that it has suffered serious brain damage. Sadly, that is not an uncommon event. Why should that not be encompassed by these proposals? I agree that that falls short of death and of the specific offence that the Government have included in this Bill, but it is as serious. There may be no difference in intent between a case where a person beats, shakes and almost fatally injures a child, and a case in which a child dies. 
 It is essential at least to consider this. I was given some reassurance by Baroness Scotland in another place. She responded in a reasoned tone to the same amendments tabled there by my noble Friends. She made it plain that the Government have seriously debated this matter over some time and that there was doubt as to whether the Law Commission proposals in their entirety should have been presented or whether the provision should cover death alone. 
 I have mentioned children throughout my comments, but this also applies to vulnerable adults, and one of the arguments that has been adduced against these proposals is that there should not be the same arrangements for children as for vulnerable adults. I do not accept that argument for a moment. The more cogent argument, which we may hear today, is that the new offence is a matter of concern for the human rights of the accused. That is a legitimate argument, which has to be weighed extremely carefully. I am given some reassurance by those in the other place who have considered the matter purely on the basis of the human rights implications, and have considered that the balance should come down in favour of the new offence. My noble Friend, Lord Lester of Herne Hill, is a very satisfactory guide on what is appropriate.

Dominic Grieve: I am mindful of the view in the other place about the new offence, although it is noteworthy that the other place was not in a position to consider new clause 18; I hesitate to raise that matter now, but it is relevant. In my view, and the hon. Gentleman may agree, new clause 18 impinges substantially on the question of rights and the propriety of the way in which a trial procedure takes place, and has a direct bearing on the amendment, which would extend the clause to include serious harm.

David Heath: I accept what the hon. Gentleman says, but we should have that argument at a different point in the proceedings.
 At the moment, I am attempting to argue that, although I accept that the proposed new offence would have serious human rights implications, I do not believe that they would be different in the cases of murder and serious harm; exactly the same arguments would apply. Therefore, if the Committee and the House felt at the end of the day that it would be appropriate to have the offence in its present form, there would be no additional argument on human rights grounds as to why the offence should not include serious harm. The argument that to extend the range of offences is somehow to extend the potential for a restriction on human rights is wrong. It is an absolute: either the proposed procedure would disregard human rights or it would not. 
 The other argument is that ''serious harm'' is too vague a phrase, and too open to construction by the courts. I am not sure that I accept that argument, although I understand the point. I would have no great difficulty in accepting the Government's position if they said that they would home in on a more restrictive interpretation of ''serious harm''—grievous bodily harm is defined, I believe, in the Offences Against the Person Act 1861? Such a position would be perfectly arguable, but justice for the child or the vulnerable person requires that we identify ways of dealing with those who commit the offences but will not own up to them. 
 The Government lay great store on the idea that this will act as an incentive—the mere fact of the penalty will encourage one or other of the accused to come forward with evidence. That is a serious point, and I hope that the penalty will work in that way. If it does, it will work as effectively for cases of serious harm as for cases in which there is suspicion of murder, manslaughter or unlawful death. 
 There is a perfectly sound argument for accepting the evidence that the Law Commission so assiduously collected before making its proposals. It has argued its case very carefully, and as I have said, I was impressed by the quality of its argument. It has done a good job of assessing the rights and wrongs of the case. 
 I am not convinced by the Government's apparent view that one must test the offence in the most serious case—of course, murder is the most serious case—before being able to apply it in any other case. The distinction in the case of serious harm, or the unlawful killing of a child or vulnerable person, is one of extent, not intent. 
 I shall listen carefully to the Minister's reply. I understand that the Department's view is not closed and that it is open to discussion; indeed, discussions have been going on. Perhaps, therefore, he can explain the Government's position. Are any of the points that have been adduced still under consideration? Is it possible, even at this late stage, to extend the provisions and finish the job? If so, we can resolve an issue that the Law Commission went such a long way towards addressing in its very good report.

Meg Munn: I want to raise the issue of vulnerable adults and to hear the Minister's view about it. As I said this morning, I chair the all-party Voice group, which raises issues relating to learning disabled adults. I have had considerable discussions with Voice UK and Values into Action—another organisation that promotes the rights of learning disabled adults—and they both agree that it would be useful to have an offence covering serious harm. They welcome the offence in the Bill as a way of tackling domestic violence against vulnerable adults, which they believe has not been properly dealt with—perhaps for the same reasons why all domestic violence is under-reported. It is important for us to consider therefore whether it would be possible also to have an offence of serious harm.
 I have had some correspondence with Richard Crompton, from the police. Although he has responded in a personal capacity, he has been involved with the Association of Chief Police Officers in considering issues relating to vulnerable adults in the context of this Bill and the Mental Incapacity Bill, which the House will consider later. His personal view, from his vantage point in the police service, is that it would be beneficial to have an offence covering the ill-treatment and neglect of vulnerable adults. He believes that that would help the police to know how to respond to specific situations, particularly those in which vulnerable adults have been cared for either by those with a statutory responsibility or in a family setting. He believes that it would be appropriate to consider the issue in the context of this Bill because it is not purely about those who lack capacity. I look forward to the Minister's comments.

Dominic Grieve: I listened with great care to the speech by the hon. Member for Somerton and Frome (Mr. Heath), and there is a logic to what he says. If we are criminalising causing death in cases where someone dies as a result of the offence in clause 5, why not extend the offence to include serious bodily harm? The point is often made at the Bar that murder is grievous bodily harm with a corpse. My difficulty with that view, and I do not have a settled view on the matter, is that we should also be mindful of the novel nature of the offence that we are creating under the clause. This may be an opportunity to touch briefly on it, although it will also impinge on the other amendments that we will consider.
 The origin of the clause was the concern that had been expressed about the impossibility of securing a conviction in cases involving the apparent murder of a child in which it became abundantly clear that only one of two, or possibly three people—a restricted number—could have committed the offence. Whether or not they blamed each other, it was impossible to tell which of the two had done it. The public concern that individuals were getting off was the starting point of the legislation. That concern was absolutely warranted. 
 I do not criticise those who drafted the Bill, but it was not drafted to deal with a conviction in circumstances in which two people blame each other and it is impossible to tell which of them has 
 committed murder or grievous bodily harm. What the Bill has done is to create an offence of negligence, which is different in quality from manslaughter. Indeed, if one must try to find a sort of derivative, it belongs more to health and safety legislation than to anything else, because the nub of the offence is the failure 
''to take such steps as he could reasonably have been expected to take to protect'' 
the victim from the known risk. 
 In a sense, we are taking an offence from health and safety law, creating an offence of negligence, and punishing the perpetrator with 14 years' imprisonment. One need only consider the draconian penalty that attaches to the offence to see that this is a novel area of criminalisation. I therefore understand the Government's reluctance to extend it to anything beyond the very worst case, which is a death, and their possible wish to wait and see how the offence works out in practice, including the way in which it is tried, the penalties that may be imposed on those convicted, and any challenges that may be made following the operation of this legislation. 
 As I told the hon. Member for Somerton and Frome earlier, I do not believe that his amendment can be considered in isolation. We should take care to consider the totality of the consequences of the clause. I do not seek to anticipate my own amendments, but we need to consider whom the offence bites and the extent to which the Government intend it to have an impact on other charges that may be brought against an individual, as is shown in new clause 18, before I can decide whether the amendment is right. I look forward to hearing the Minister's view about the extension. As I said at the outset, there is undoubted logic to what the hon. Gentleman says, but I am anxious because it appears that the offence could extend much further than the circumstances in which a person would have been charged with murder, but a conviction cannot be secured because one cannot say which of two people did it. 
 The offence could apply across a very wide spectrum of circumstances in which a person has a responsibility of care for a child. We need to be cautious, so I reserve my position and look forward the Minister's response to this very pertinent amendment.

Paul Goggins: As this is the first group of amendments on the clause, it is important to say at the outset that I welcome the broad cross-party consensus on the attempt to deal with circumstances that have proved difficult—those in which it is known that one or other person has committed the act leading to a death, but it has not been possible to identify which one. That issue has gripped politicians, lawyers and campaigners for years, and the clause is an attempt to redress the injustice. We shall debate various issues related to the clause, but I appreciate that there is broad welcome for it.
 The amendments introduce for debate the question whether the offence should be extended to cover not only those events leading to death but those leading to serious harm. The question has been widely discussed in the other place and we have been given the thoughts 
 of the Law Commission as well as weighty evidence from organisations such as the NSPCC, which, in its report, ''Which of you did it?'' states: 
 ''Each week three infants suffer serious injury or death when in the care of adults who should be protecting them.'' 
While I do not accept the amendments and will be asking the hon. Member for Somerton and Frome not to press them, I do not underestimate the need to increase and improve the protection that we offer to children, who should be looked after properly by those responsible for them. The statistic takes no account of the vulnerable adults that my hon. Friend the Member for Sheffield, Heeley (Ms Munn) referred to, and for whom she campaigned so vigorously as the chair of the all-party Voice group. 
 That group does great work in bringing the issues to the fore, but I ask my hon. Friend to accept that, at this stage at least—I am sure there will be other opportunities to debate the issue—there is not a direct read-across from children to vulnerable adults. There are differences and we need to tease them out. 
 There are four reasons for the Government's conclusion, after careful consideration of the matter, that the offence should cover events leading to death but not serious injury. The first is that there are other ways of capturing criminal behaviour of that kind. We have all experienced the frustration that arises when it is not possible to convict people despite its being known that the actions of one or more of them have contributed to a death. However, there are other forms of legal redress. When a child is hurt the offence of child neglect can be pursued. The offence of grievous bodily harm, which the hon. Member for Somerton and Frome referred to, is also available. It is not as if there is no redress. 
 Secondly, there are clear differences—specifically in relation to determining which one of the accused committed the offence—between a situation in which someone has died and one in which the victim survives. That is not least because the surviving victim may be able to give evidence in any prosecution case that is brought; clearly that is not possible where the victim is deceased.

Meg Munn: I apologise for interrupting my hon. Friend in mid-point. Does he agree that in cases involving small children and vulnerable adults who may have communication difficulties the ability to give evidence is a matter of concern? In their cases his argument does not hold sway, and that is why the organisations concerned suggest that we should consider the amendments.

Paul Goggins: We are doing more, and need to do yet more, to ensure that vulnerable witnesses and very young children in court are helped in every way possible so that the experience is as palatable and productive as possible. I assure my hon. Friend that that will continue. I have explained two of my reasons for not wanting to accept the amendments, and will come to the others; none of them would be sufficient alone, but the four of them together give the argument the weight that has led us to our conclusion. However, I shall think carefully about my hon. Friend's point.
 The third point concerns definition. The hon. Member for Somerton and Frome raised that himself. If it were the only issue that arose, we could perhaps debate it further to ascertain whether there was sufficient common ground between us, but as I have said, it is one of four. We would be faced with a debate about what injuries constitute serious harm. At present, a broken nose can be dealt with as grievous bodily harm, but would probably not be treated as serious harm. We would have to debate further, as we would be in the problem area that we talked about this morning—that when we define something, we automatically create a loophole. There are real difficulties with definition. 
 Fourthly, as the hon. Member for Beaconsfield (Mr. Grieve) said, the new offence is, in some respects, novel and carries a severe penalty. Confining the offence to cases in which someone has died fits with the special status of death in the law. It is that special status that helps to justify the new offence and some of the associated procedural measures, which we will discuss later. 
 The new offence bestows on household members who are aware of the risk a responsibility to take such steps as are reasonable and necessary to prevent someone from coming to harm. Again, related provisions will ensure that murder or manslaughter charges are not dismissed at the end of the prosecution case because it is not possible to be sure who committed the offence. Those novel changes are, to some extent, groundbreaking, and can be justified only where there has been a death. 
 There is also the issue of the penalty for this offence, which is a maximum of 14 years' imprisonment. That is a serious penalty, which we may need to revise if we were to extend the offence to include serious harm, but we want to keep that stiff and tough penalty for incidents in which someone's life has been lost.

Geoffrey Clifton-Brown: I am concerned about this offence, because I wonder whether the courts will convict under this measure using the very high ''beyond all reasonable doubt'' test, and whether they will impose penalties of the same length as would be applicable to murder. I also wonder whether prosecuting authorities will use this offence as a cop-out instead of prosecuting for murder and having to go through the more rigorous procedure of obtaining a murder conviction. I would hate to think that we were passing legislation that would have those consequences.

Paul Goggins: Following the enactment of this legislation, guidance will be issued, not least regarding sentences. However, I want to reassure the hon. Gentleman that this is not an attempt to dodge the more rigorous and stiffer penalties involved with cases of murder. If we know who did, and if we know that it is murder and can prove it, we would much prefer to do that. The measure is intended to address the current situation in which we cannot get them for anything because we do not have the powers to do so.

Dominic Grieve: I appreciate that that is the Government's intention, but is it not correct that if a man in a household were to murder his child and commit suicide afterwards, leaving clear evidence that he was the perpetrator of the murder—for example, a suicide note and traces of his DNA—the mother could be prosecuted under the clause if she was in the household at that time?

Paul Goggins: Two things arise from that. First, obviously a murder charge could not be brought if someone has taken their own life, but I repeat that it would always be our intention that the prosecution should go for a murder charge if that is possible. Secondly, the answer is yes. We are making it clear that people in a household have a duty to take reasonable steps to protect children and vulnerable adults in that household. I think that that is a welcome move, but it is one that we need to take carefully for the reasons that the hon. Member for Beaconsfield has mentioned, of which he will doubtless remind us later.
 In conclusion, I appreciate hon. Members' concerns, and I do not question the motive of the hon. Member for Somerton and Frome in moving these amendments. If it were straightforward and could be justified, we would extend the offence to include serious harm, but we do not think that it can be justified in all circumstances, and it certainly is not straightforward.

Vera Baird: My hon. Friend has made the nub of his case, but will the Government remain open-minded about extending the remit of this offence if it works well procedurally as it is currently drafted, and convictions are obtained?

Paul Goggins: We should always review the effectiveness of legislation. If an offence works, that may encourage us to look further to see whether it could be applied in other situations. However, we cannot consider that now. We have to get to first base and begin prosecutions against the people who have committed such foul acts and, as the hon. Member for East Worthing and Shoreham (Tim Loughton) said on Second Reading, have literally got away with murder in so many cases in the past. Let us get that right, and we then will reflect on legislation and ascertain how else it might be applied. I am not in a position to make any long-term commitment today, and nor would I do so, as that would not be appropriate.
 Death signals something that is of the greatest significance to any of us, and it is that that we wish to capture in clause 5. In that spirit, I ask the hon. Member for Somerton and Frome to withdraw the amendment.

David Heath: I am grateful to the Minister for the tone of his response, and for much of the content. I am still not entirely persuaded. He says that it is not a simple and straightforward matter, and everyone accepts that. It is a complex solution to a complex problem. That is why the Law Commission took such a long time and such a lot of evidence, and involved so many
 people in its considerations on the appropriate way forward, and why it came out with its recommendations.
 Some of the points put forward do not bear much scrutiny. First, the Minister talked about difficulties of definition. I addressed that in my opening remarks. I am perfectly content to hear the view expressed that serious harm is too nebulous a term, and I would be equally happy to have it defined as grievous bodily harm, as I suggested, under the Offences Against the Person Act 1861—I have managed to find the reference to the legislation, so I am happy to read it into the record. It is wrong to extrapolate from that and to say that courts are unable to identify what constitutes grievous bodily harm. They do so on a regular basis, and it is not a satisfactory argument to say that it is impossible to have a definition of what constitutes serious harm for such purposes.
 The second issue was that of penalties. I understand that the penalty has been placed at a particular threshold to do two things: to ensure that the penalty for the offence is commensurate with the act that has been perpetrated, and to act as an incentive to ensure that people come forward with evidence if they have it rather than be charged with the alternative offence of murder. In the case of serious harm, I would be content if the Government were to say that 14 years is too much for that specific offence, but that they would have a lower tariff for such an offence. I understand the approach, but it is not a barrier to progress. 
 Thirdly, the idea that the amendment is not necessary because the victim is still alive and is therefore capable or more likely to be capable—surely more likely than a corpse—of identifying the perpetrator, was a weak point. That is true, but in such circumstances we do not need the offence that I propose. Where the victim can provide the evidence to enable somebody to be charged with a reasonable expectation of successful prosecution, we do not need the offence. We will need it when somebody is lying in a coma because they have been beaten around the head by one of two people, and nobody is going to be charged. That is the problem with not having such an offence. In such circumstances the victim cannot give the appropriate evidence and only two people know which of them did it—one of them did, but we do not know which one. Exactly the same thing applies in the case of death. 
 That leads to the fourth point. The Minister made much about death being a unique circumstance. Death is a unique circumstance in that someone has lost their life, and we should not lose sight of that. However, in terms of the intent of the perpetrator, death may be anything but unique. It may simply be a matter of extent or indeed chance whether a child either dies or is shaken to the point where they suffer brain damage, enter a vegetative state and become incapable of a meaningful life, owing to the offence committed. That may not be a great difference, but neither is the circumstance unique. 
 That is why we need to consider the matter again. I was somewhat reassured by the Minister's response to the intervention from the hon. and learned Member 
 for Redcar. The Government might be prepared to revisit the matter in the light of experience. However, we are still closing one lacuna in the law but failing to address another that is almost of equal significance and danger.

Geoffrey Clifton-Brown: The hon. Gentleman makes a cogent case. Is he aware that the maximum sentence that the courts can impose for grievous bodily harm is life imprisonment? The courts take an extremely serious view of such offences. In the circumstances that the hon. Gentleman describes, where a blow to the head or a shaking might result in death of serious injury, the difference in offence is relatively small, particularly if the person was unconscious and it could not be proved who had committed it. The clause ought to apply in those circumstances. The hon. Gentleman makes a cogent case.

David Heath: That is my view. Notwithstanding all the difficulties in the court's interpretation and the details of statute, which I accept, something needs to be addressed that the Government are failing to address, albeit not through intent, because I accept that the problem is difficult. However, I hope that more, careful thought will be given to the issue. I perceive a danger, in that we are closing one loophole but leaving another one open. That loophole may have a profoundly unsatisfactory consequence. Somebody who, but for the grace of God, would have committed murder, might nevertheless be allowed to go free because there is not the mechanism to apply any of the other potential offences.

Dominic Grieve: I hope that the hon. Gentleman will excuse me for repeating what I said to the Minister, but the clause could be used not for that purpose at all. I do not say that that would be wrong, but the clause could be used when it is clear that the person being prosecuted had not committed the offence, but was nevertheless neglectful, in the terms of clause 5. I hope that the hon. Gentleman will forgive my emphasising the point to him, but that is something that we should bear in mind when considering the drafting on the offence in question and how far it should extend.

David Heath: I agree with the hon. Gentleman to the extent that he is right that there is potential for abuse of the legislation.

Dominic Grieve: That is straightforward.

David Heath: I accept that potential, given what the statute will say. We should be careful to avoid such outcomes in framing the legislation, if we can. However, I am not sure that I agree that, as a consequence, we must either not introduce an offence to deal with an acknowledged mischief or so limit the legislation as to fail to deal with another acknowledged mischief, which is almost identical, except for the consequence of the perpetrator's action.

Vera Baird: I agree with much of what the hon. Gentleman said. I suppose that he can take a little bit of comfort from the existence of the child neglect
 offence in the Children and Young Persons Acts, criminalising assault or neglect, for which people are often charged in exactly the circumstances that the new provision is intended to cover: cases where one cannot tell who has done the action in question, because both are prosecuted on an either/or basis. The maximum sentence for that is only seven years, so it does not really meet the gravity of the cases to which he referred, but at least it is there in the meantime.

David Heath: The hon. and learned Lady is of course right. That provision exists, but I think that we have the opportunity to do better and I would like us to do so if we can find a formulation that is satisfactory. If the Minister is not prepared to accept the proposal today—and I understand why he might not be—it is still a matter about which we must maintain a dialogue. I know that others, who are much more expert on the subject than I am, are still in dialogue with the Department about it. My only request is that that continues. My suspicion is that we are hitting one goal and missing another; that might be the appropriate metaphor of the moment. I am confident that we will need to return to the matter at a later stage. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 8, in
clause 5, page 2, line 41, leave out from 'V' to end of line 1 on page 3.
 I tabled this as a probing amendment in an endeavour to keep legal rules simple and I should make that clear to the Minister. Subsection (1) provides that: 
 ''A person (''D'') is guilty of an offence if— 
 (a) a child or vulnerable adult (''V'') dies as a result of the unlawful act of a person who— 
 (i) was a member of the same household as V, and 
 (ii) had frequent contact with him, 
 (b) D was such a person at the time of that act,'' 
It goes on to provide for what I call the negligence requirements in respect of the action. 
 Why does the Bill use the term 
''had frequent contact with him''? 
The Bill provides that the offence is committed by someone who is within the same household. Therefore, I would assume that the prosecution must establish that the person was living as a member of the household. Of course, such a person could be away from time to time, but they would still be within the same household. If one examines paragraph (d)(i), (ii) and (iii), the defendant, the person who has been negligent in respect of the actions of another person, must be aware of the risk that is mentioned in paragraph (c), which provides that: 
''there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person'' 
If that proof must be established by the prosecution, why does it matter whether or not the person concerned had frequent contact with the victim? I suspect that the reason for including the requirement for frequent contact was to ensure that the provisions apply to someone who is a regular member of that 
 household and not to impose a draconian penalty for negligence on someone in circumstances where the co-accused—the other person who may have done the offence—did not have ''frequent contact''. Why does the provision matter, given that there is to be the protection of having to show that the defendant ought to have been aware of the risk? 
 The amendment is a probing one. Given my usual stand of trying to protect the rights of those who are being accused from oppressive legislation, I might not normally have tabled it. However, it raises an interesting question about the necessity of paragraph (a)(ii). I would be interested to hear from the Minister why it was thought right to include that provision. One of the consequences could be to allow considerable scope for legal argument, where someone will say, ''Well, it's true that I ought to have been aware of the risk and that he was a member of the household, but as he did not have frequent contact with him, I should be acquitted.''

Paul Goggins: The hon. Gentleman moved his probing amendment in his usual cogent way, and I will try to respond in kind.
 The justification for our approach is straightforward. Frequent contact and proximity to a child or vulnerable adult in their own home carries with it a responsibility on the part of the members of that household to take such steps as are reasonable and necessary to prevent the child or vulnerable adult from coming to harm if they are aware of a risk to them. Whatever their relationship to the child or vulnerable adult, they should not simply ignore their needs and any ill-treatment or neglect. However, the amendment would remove the need for there to be frequent contact between the victim and the members of the household. 
 The measure that we are proposing is a big step. Extending it to any of those in the household who are not themselves carers is a huge step, and we think that it is a step too far for it to catch within its ambit those who do not have frequent contact with the victim. Let us take as an example a lodger or student who takes rooms in a house and fails to intervene if he perceives a risk to someone in that house. He might not take his meals with the other members of the household or share their leisure pursuits or much of their living space. It would be wrong to place that person in the same position as someone who has regular—perhaps even hourly—contact with the victim. 
 We are trying to ensure that we focus on those who are most likely to be aware of the risk of harm to the victim and who are in a position to ensure that steps are taken to protect the victim from harm. Only those with frequent contact with the victim are likely to be in a position to observe the ill-treatment or neglect and any other evidence of the threat to the victim and then to take the reasonable steps that are necessary. 
 I hope that I have successfully explained our thinking behind the need for there to be that frequent contact for this offence to occur.

Sandra Gidley: I am reminded of work that I have been doing with Action on Elder Abuse. Some of its research points up that the person who is the abuser is usually not the carer; the abuser is sometimes a member of the same household, but is frequently one stage removed from the caring process.
 Another thought that came to mind is that it should be made clear that if anybody in any walk of life is aware that abuse may be being carried out, the onus is on that person not to keep quiet or to leave it to somebody else but to raise their doubts. As the clause is currently drafted, it gives a get-out so that people can say, ''Well, I wasn't really there enough to see that something was going on.'' Such people might be well placed to raise the alarm about abuse.

Paul Goggins: The hon. Lady's intervention provides me with a good opportunity to say that although we focus in our discussions on fine points of law, we should always remind ourselves about moral responsibilities. In the situation that she outlines, we hope that people would act with a sense of moral responsibility about caring for people and that they would shout if they feel that things are not right and that people are not being properly looked after.
 However, what we are trying to do in this clause is to set out a new offence, which deals with a very serious situation and carries a huge penalty. We need to do that with the greatest care. I am sure that hon. Members of all parties will approve of the care being taken. That is why we do not want to extend the offence too far in the way that we were invited to in the previous amendments by the hon. Member for Somerton and Frome. That is why in this discussion we are emphasising the need for frequent contact. 
 It is a new offence and carries a stiff penalty. We believe that frequent contact is an essential element.

Geoffrey Clifton-Brown: I should like to test the frequent contact a little further in this circumstance: as children grow older they often stay less frequently at home. What is the position of a child who has attained the age of 17 and is therefore potentially liable under the clause, is at home only infrequently but had been close to their siblings, one of whom might have been killed? Are they caught by this clause?

Paul Goggins: The hon. Gentleman raises an interesting point. In the end, the court will have to decide whether the balance between the child's membership of the household and their proximity to the victim captures them within the offence. Clearly, the less someone is a member of the household the less they stand a chance of being caught within the offence. I speculate, but if someone was a member of the blood family but lived away and came home occasionally, one would not argue that they were a member of the household. They might be a member of the family, but they would not be a member of the household, so they would be less likely to be captured by the offence.
 That is speculation on my part. If, having thought about the matter further, I conclude that I was wrong, I shall write to the hon. Gentleman. Yesterday, I was speculating on my own family, where my older children come back from time to time, to what extent 
 the offence might capture them; but if they were not members of the household they would be less likely to be caught within it.

Dominic Grieve: I am grateful to the Minister for his response. He has persuaded me. I am going to quote back to him some of the things he said when we come to consider the next group of amendments in a completely opposite sense. I hope that he will then bear very much in mind what he had to say in respect of this amendment when I ask him about the next lot. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 32, in
clause 5, page 3, line 6, after 'ought', insert 'reasonably'.

Joe Benton: With this it will be convenient to discuss the following:
 Amendment No. 33, in 
clause 5, page 3, line 11, after 'ought', insert 'reasonably'. 
Government amendment No. 56. 
 Amendment No. 24, in 
clause 5, page 3, line 15, at end insert— 
 '(2A) A person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'. 
Amendment No. 22, in 
clause 5, page 4, line 3, at end add— 
 '(9) For the purposes of this section, a person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'.

David Heath: Under the amendment, subsection (1)(d) would read,
''(i) D was, or ought reasonably to have been, aware of the risk mentioned in paragraph (c)''. 
That deals with an issue that was explored on Report in another place, where proposals originally from the Law Society sought to remove ''ought to have been'' altogether. It was considered by the Lords, and the proper point was made that to leave out the words ''ought to have been'' would enable a relatively simple defence to be promoted: that someone simply was not aware of what was going on in the household around them because they had chosen not to be aware; and it would be difficult to establish to the court's satisfaction that the person was aware, despite the fact that any reasonable person would have been. 
 I understand that argument. That is why I have not sought to press the amendment at this stage. However, the clause is widely drawn and might catch those who, owing to their abilities, proclivities, experience or circumstances, would not have been aware of what was likely to cause the risk of serious physical harm. One can imagine, for instance, that those with limited experience of such matters, might not have recognised that the behaviour of a person in the household was likely to have the consequence that it did. It is also possible to imagine those who might, for perfectly understandable reasons on their part, have 
 misinterpreted what was going on and could show to the court's satisfaction that they had done so, even though the court might hold that a person with reasonable faculties would have come to a different conclusion. 
 There are circumstances, crucial to this part of the Bill, in which people are so coerced or afraid because of the domestic violence that already pertains that they are not prepared to accept the consequences of the action of another person in the household, and there are those in which people have some disability or learning difficulty that precludes them from drawing a proper inference from the actions of others. 
 In all those circumstances, it is possible to say that people ought to have been aware of the risk. However, they were not, for the reasons that I have suggested. It would be of assistance to the courts in interpreting the clause to insert ''reasonably''. That would apply an additional test to the actions of the individual who was charged, and it would enable the courts to look into whether that person should have been aware of the risk—taking into account the context, the circumstances of that person and all his or her personal abilities. That was how, in her response to the amendments to leave out ''ought to have been'', Baroness Scotland suggested that the courts would interpret the statute. She, too, inserted ''reasonably''. I seek to follow the reasoning of the Minister but to ensure that the courts also have access to that reasoning, so that people are not wrongly accused in circumstances in which they really could not have come to the conclusion that the statute appears to be expecting them to come to.

Hilton Dawson: Is the hon. Gentleman not skirting over the huge distinction between putting a concept of reasonableness in the Bill and accepting that a court will look at defences of reasonableness after the fact? In trying to be reasonable, is he not doing something dangerous, and giving people a higher principle to aim for than the fact that they should always look to protect children and vulnerable people?

David Heath: No, I do not accept that for a moment. We are told that the courts will interpret the provision as I have described in any case, but I am not convinced. Is the hon. Gentleman asking a court to consider an unreasonable circumstance in which someone is not able properly to appreciate the risk, and saying that such people should be liable for prosecution under this part of the Bill? I do not find that an acceptable element of a statute. Surely it could not be the case. He must be aware that many people are not able to take the view of a reasonable person—the mythical man on the Clapham omnibus—about what is happening around them. Is he really saying that such people should be in a position to intervene and should intervene, even though they will not have formulated the view that there is a risk? He is nodding.

Hilton Dawson: I thought that I had made clear my view that there is a distinction between a defence that someone might wish to offer about their behaviour or lack of behaviour in particular circumstances, and
 making something explicit in a Bill. Pursuing the latter course would surely create a dangerous situation in which we almost gave someone a get-out, even though we expect any adult, frankly, to rise above themselves to protect children. That seems to me to be the reasonable thing to do.

David Heath: We are talking not only about adults but about children in the context of the clause. We are not talking only about those who are of sound mind and have the mental capacity to draw proper inferences, who are covered by this area of the Bill, or about those who have the luxury of domestic circumstances in which they are free from fear and coercion. There is every expectation that the courts will deal fairly with people, and I do not believe it unreasonable to ask a court so to do.

Hilton Dawson: I know individuals with learning disabilities who would act like lions to protect children who were being abused, and such individuals would feel patronised by the defence that the hon. Gentleman proposes.

David Heath: I know such individuals, too, but that is not to dispute the fact that others would not be in that position. [Interruption.] The hon. Gentleman says from a sedentary position that it is down to the individual—that is exactly the point. However, the way in which the clause is phrased does not give the courts that latitude. His suggestion that my proposal is profoundly dangerous does not hold water. The test of reasonableness pervades criminal justice and statute in this country. It is hard to accept for one moment that inserting a test of reasonableness would in any way undermine legislation, especially as my argument was adduced by a Minister in response to previous amendments to remove the words ''ought to have been''. I am simply quoting her words.

Dominic Grieve: Does the hon. Gentleman agree that the word ''reasonably'' may not be required? One might have, for instance, ''in all the circumstances''. The question is whether it is a subjective or objective test. Are the jurors to put themselves in the position of the person who had to make the judgment, or do they exercise their own independent view of the circumstances? That is the key.

David Heath: The hon. Gentleman is absolutely right. Those words would have been an alternative formulation. The proposal would simply allow the court to consider the specific circumstances of the person who is charged with the offence and whether it is reasonable for that person to have drawn the inference that it is assumed a reasonable man or woman would have drawn.
 The proposition is not absurd. I am disappointed that the hon. Member for Lancaster and Wyre (Mr. Dawson) sees it in the terms that he expressed. I am trying to ensure that this law—a novel area of law with which we must be careful—does not act unfairly against those who are not in a position to draw the sort of inference that every member of the Committee and 
 99.9 per cent. of the pubic would draw. There may be that 0.1 per cent. of the public who are not in the position to draw that inference, and their circumstances should be taken into account by the court. That is sufficient to justify amendments Nos. 32 and 33. 
 When I respond to the debate, I will respond at greater length to Government amendment No. 56 after we have heard the Minister's reasons for wanting to strike out an eminently sensible precautionary approach from those in another place to deal with victims of domestic violence when they find themselves accused of the offence under discussion. It does not prevent the court from finding the person guilty of the offence; it simply suggests that the court shall have regard to that area, and that is self-evidently necessary. I would expect it from a court in any case, but it does no harm whatever to have it at the forefront of the judge and jury's consideration of the evidence. I am very disappointed that the Government feel the need to strike it out, and I will be even more disappointed if that finds favour with other members of the Committee whom I would expect to support its inclusion and who might argue for its inclusion were it not there already.

Dominic Grieve: I, too, shall wait with interest to hear what the Minister has to say. The point made by the hon. Member for Somerton and Frome has considerable force. I am left in a slight state of uncertainty as to what the present test is. The Minister may wish to clarify it, because—going slightly against the hon. Gentleman's argument—if the defendant was or ought to have been aware of the risk mentioned in paragraph (c), what latitude does that give to a jury to consider all circumstances? I may hear from the Minister that all circumstances including the age of the defendant may be taken into consideration. I expect that the jury will take it into consideration even if it is not expressly provided; however, the test is opaque.
 If, for instance, the person concerned was blind, one might ask, ''Ought that person have been aware of the risk?'' In that instance, I assume that the test would not be objective in the sense of applying oneself to what the juror would consider the risk, as opposed to that person themselves. If that were not the case, a manifest and gross injustice might be committed. I have a feeling that that is not the intention, but it would be nice to have some clarification.

Vera Baird: I, too, am concerned about that area, but I wondered whether the amendment might not make matters worse. My take on how the provisions will work is that the jury will have to consider whether D, who may have a learning disability, be suffering domestic violence or be blind, ought to have been aware of the risk, and I am worried that the amendment would narrow that person's position. If one does not include the word ''reasonably'', and D unreasonably but genuinely fails to be aware of the risk, they will be not guilty. I do not know whether the hon. Gentleman is following my argument; it is not straightforward.
4.30 pm

David Heath: I follow entirely what the hon. and learned Lady is saying. If she is right about the way in which the court might interpret the provisions, however, I fear that we shall leave open the defence that the Minister in another place suggested she wanted to close by rejecting the amendment to leave out the words ''ought to have been''.

Vera Baird: I am grateful for that intervention, but I was really concerned with what the hon. Gentleman is trying to do. We urgently need clarity about how the clause will be applied. He may want to be absolutely sure that all individual characteristics are taken into account, but his amendment is the wrong way of going about it. If we include the test of reasonableness, someone who, perhaps because of his inadequacies or disabilities, honestly but unreasonably fails to be aware of the risk, could end up being guilty—that is the danger. If we include the word ''reasonably'', he will be guilty, even though he honestly failed to be aware of the risk and truly did not know what was going on.
 Although the introduction of the word ''reasonably'' does not help, there is a need for clarity, and it is imperative that the Minister make it clear that the jury will have to decide whether D—that individual, with all his pros and cons—ought to have been aware of the risk. That is a very subjective test, and the jury will not be making a moral judgment that takes no account of that individual's weaknesses. We need to be clear about that. 
 We also need reassuring that account will be taken of all the circumstances, including the frequency of visits, how the person who was primarily responsible for the death behaved towards the victim, and so on. We need to be reassured that not only the individual but the whole set-up in which the events occurred will be considered. 
 Government amendment No. 56 would leave out subsection (2). Often, when a child has been killed, domestic violence is likely to have been present in the family. Indeed, that is highly likely, because domestic violence against a woman frequently occurs alongside domestic violence against a child. I can therefore see why there is a drive to ensure that we point to the likelihood of domestic violence and deal with it as a separate issue. I believe that the Government have reservations about doing so, however, because it is possible for someone to be kept silent or to be prevented from protecting a child by many other means than domestic violence. For example, one could blackmail or financially coerce somebody into not protecting a child, and that would not necessarily be domestic violence. 
 I am sure that I have heard the Government argue that making specific mention of domestic violence in the Bill would put the defendant in an inequitable position if they had, in fact, been coerced in other ways into not protecting someone, because they would not be given the specialness of protection that a clause in a Bill would give. Nevertheless, domestic violence is so likely to be present in such cases that it is important to include it in the Bill.

Paul Goggins: Subsection (1)(d)(ii) states that a person will not be guilty of an offence unless he or she failed
''to take such steps as he could reasonably have been expected to take'' 
to protect the victim from the risk. That is integral to the offence. It was debated long and hard in the other place; we discussed it to an extent on Second Reading; and we are now engaged in debate on it in Committee. In all those discussions we are aware of the position of women who are the victims of domestic violence. 
 I regret that, as we all know, women are the victims in the vast majority of cases of domestic violence, although, as was pointed out on Second Reading, that is not always so. Sometimes a man is the victim. Such victims may be unable to do much to protect themselves, let alone others who may be at risk. The debate in the other place concluded with the insertion of a new subsection into the clause, which is now subsection (2). 
 I understand the reasoning behind the introduction of subsection (2) and the further amendments that we are now considering. I do not question the intentions of those here or in the other place who have advanced arguments in support of those changes. We all agree that victims of domestic violence need our help and protection. The Bill is all about that. What we are now discussing are risks that might undermine the intent and purpose of the clause altogether. That is why we feel unable to accept the amendments. 
 The practical effect of subsection (2), which Government amendment No. 56 removes, would be to undermine the reasonable steps test by implying a different test for the victims or potential victims of domestic violence. My hon. and learned Friend the Member for Redcar ran through some of the arguments on this. The subsection risks making the offence virtually unprosecutable in most classic ''Which of you did it?'' cases, because research suggests that there is a backdrop of domestic violence in many child cruelty cases.

Dominic Grieve: I simply cannot accept the argument that the subsection makes cases unprosecutable. All that it does is highlight one of the features that the judge will have to point out to the jury in summing up. The fact that domestic violence has occurred does not, under subsection (2), absolve the person concerned. It is simply a factor on which stress should be laid for the jury. I think that the Minister is going a little far in making the leap to say that the case would become unprosecutable.

Paul Goggins: I think that I used the words ''virtually unprosecutable''. I believe, with my noble Friend Baroness Scotland, that the subsection would undermine the effectiveness of the offence.

David Heath: With great respect, that is not what Baroness Scotland argued. She said that the subsection was unnecessary because the court would already take the matter into account, and it involved the disbenefit of singling out for consideration a particular group. At no point did she suggest that it would affect the ability
 of the prosecuting authorities to take action. Her main argument was that it was otiose and unhelpful in its direction.

Paul Goggins: I shall come to those arguments in a moment. I just want to preface my remarks by saying that the correlation between the relevant type of case and the incidence of domestic violence could mean that the subsection would undermine the implementation of the new offence. There are other arguments, which Baroness Scotland made in the other place.
 One of those arguments has also been made here: that the subsection also unfairly singles out defendants who are vulnerable because of domestic violence from among other vulnerable defendants. If particular regard is to be paid to those at risk from domestic violence, what regard should be paid to those who are very young, disabled, or frightened for some other reason? It seems unfair to single out one group of vulnerable people over and above others. 
 As my hon. and learned Friend the Member for Redcar pointed out on Second Reading, there are other ways of putting pressure on someone to stay quiet, to join in or to deny to the police that either party committed an offence. What about the pressures that could be brought to bear, for example, by withholding money? It is best that we leave it to the court to look at all the factors in the case and determine what pressures were exerted on those involved and not to single out certain circumstances as being more deserving of consideration than others. 
 No member of the Committee underestimates the difficulties that victims of domestic violence may face, a point made forcefully throughout our debates here and in the other place. Victims of such violence can often be afraid; they can be isolated and demoralised by their situation. We have always recognised that. That is why the reasonable steps provision forms such an important part of the offence. 
 In deciding what steps were reasonable in any individual case, the courts will take into account all the circumstances. That might include domestic violence or the defendant's youth, or any other factor that might make a person vulnerable or reduce the reasonable steps that they might have been expected to take. 
 I do not question the intention of the hon. Member for Somerton and Frome in tabling the amendments. There was an interesting exchange, which got quite lively at one point, about what ''reasonably'' might mean. We certainly do not want to suggest that there could be an objective test of reasonableness. We want a test that relates to the circumstances of the individual, which are then taken into account in assessing the steps that he could reasonably have taken. 
 Horrific as being a victim of domestic violence is, that does not absolve anyone from the responsibility to protect a child or vulnerable person who is at risk and depending on others for help. That might sound counter-intuitive and rather harsh and uncomfortable, but if we failed to do justice to the defendant and the 
 vulnerable person whose life has been lost, that would be even more uncomfortable. The hon. Gentleman's amendments say that victims of domestic violence are absolved from their responsibility to protect others, even their own child who is at risk of serious harm. Difficult as the argument is, that is unacceptable. 
 We must be sure that victims of domestic violence know where to go for help. The extra protection provided by the Bill should help to reassure them that they can feel confident in taking the steps that they need to take and will have our support. 
 The offence simply asks that members of the household do what they can be reasonably expected to do, and what is reasonable will reflect their own circumstances, including whether they have been victims of domestic violence. However, subsection (2) and the amendments might be interpreted to mean that members of the household can do less or nothing in some circumstances, which is not acceptable. Victims of violence need support, which we are intent on giving them, but they must speak out, and we and the courts will listen when they do. 
 I hope that the Committee will recognise that the reasonable steps test already affords victims of domestic violence and other vulnerable defendants the necessary protection within the offence. The amendments would distort that balance and leave the offence unfair and unworkable. In that spirit I invite the Committee to agree to the Government amendment removing subsection (2) and to reject the Opposition amendments.

David Heath: I am a little disappointed by what the Minister has said. On the one hand, he places enormous stress on the test of reasonableness in the Bill. That is at the second stage of consideration—whether person D has taken reasonable steps—and he is absolutely right. That focuses on the steps that the individual could reasonably have undertaken, given his circumstances. However, that does not undermine my argument that there is a preliminary test: should they reasonably have known that there were any steps that they had to take in the first place? That judgment is also predicated on the individual circumstances of a defendant.
 I listened carefully, as I always do, to the point made by the hon. and learned Member for Redcar, and I think that I understand it. However, I have persuaded myself that it is proper for the test of reasonableness to be applied by a court at the stage that I am suggesting, and that it does not extend a defence too widely, or restrict the circumstances in which a court could find that it was unreasonable for a person not to have known what was going on. 
 It is difficult to understand why the Government are completely confident that the test of reasonableness is the right objective test that has to be applied at one stage, but not at the preliminary stage on which the whole case rests. I still think that the court should be aware of the individual cases in both circumstances. Juries cannot just export from their own experiences what somebody should have known about the likely 
 consequences of someone else's actions. I am not persuaded, but I am not going to make further progress in this discussion. 
 In terms of the specific provision for victims of domestic violence, nothing in subsection (2) reduces the obligation on someone who is the victim of domestic violence to take appropriate, reasonable action in defence of a vulnerable child or an adult. Nothing in that subsection restricts the ability of a court to take into account the circumstances of other groups who are not victims of domestic violence in terms of the steps that they may reasonably have taken to prevent a death. Subsection (2) sends a clear signal to the court that, as we have already heard from the hon. and learned Member for Redcar and other Committee members, circumstances are often linked where there is domestic violence in a family or household and it is likely that a child and one of the parents may be the victims. It is proper for a court to take that into account and I do not think that the Minister disputes that. We should make that explicit, so that courts are in no doubt that they should be taking this factor into account, among many others, when deciding on the reasonableness, or otherwise, of the actions that a person has taken in defence of the eventual victim. 
 I am prepared to withdraw my amendment, but I am determined that we discuss the matter further. If the Minister is intent on moving amendment No. 56 to delete subsection (2), it will be necessary for some of us to express our views about it and say that he is misdirecting himself in this instance and it is wrong for the Government to undo what has been sensibly done by another place. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 56, in 
clause 5, page 3, line 12, leave out subsection (2).—[Paul Goggins.] 
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 6.

Dominic Grieve: I beg to move amendment No. 69, in
clause 5, page 3, line 18, leave out
 'If D was not' and insert 'Irrespective of whether or not D was'.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 5, in
clause 5, page 3, line 20, leave out '16' and insert '18'. 
No. 6, in 
clause 5, page 3, line 20, leave out '16' and insert '14'. 
No. 9, in 
clause 5, page 3, line 32, leave out from 'offence' to the end of line 36. 
No. 70, in 
clause 5, page 3, line 34, leave out 'ten' and insert 'thirteen'. 
No. 71, in 
schedule 7, page 38, line 3, at end insert— 
 'In section 50 of the Children and Young Persons Act 1933 (Age of criminal responsibility) as amended by the Children and Young Persons Act 1963 for the word ''ten'' substitute ''thirteen''.'.

Dominic Grieve: This is another part of the clause that causes me concern. I said at the outset that the clause attempts to do two things. On the one hand, it tries to address that particular mischief of circumstance where one of two people murdered a child but it is impossible to tell which one. As the Minister acknowledged, it could also have a wider impact in circumstances where it is possible to tell who committed the murder but we still wish to criminalise the other, because it creates an offence of negligence against those involved in the care of the child where another member of the household has killed them.
 I was struck by subsection (4), because it makes a distinction between those who are the mother or father of the victim and those who are not. In the case of those who are not the mother or the father, but who are members of the household and who were either directly responsible for the death or ought to have been aware of the risk and failed to take the steps that 
''could reasonably have been expected''— 
and if 
''the act occurred in circumstances of the kind that'' 
they 
''foresaw or ought to have foreseen''— 
there is a lower age limit of 16. If the person is the mother or father, there is no lower age limit whatever. 
 I find it difficult to imagine the justification for that distinction. Indeed, one thing that troubles me is that we are creating an offence of negligence that may criminalise some very young children indeed. It may be a regrettable fact but there are mothers who have given birth at the age of 12 or 13. There are, we now know, boys who are fathers at that age. I think that we must be careful. 
 I repeat that the offence does not mean that the offender probably murdered, but is going to ''get away with it''. It is an offence of negligence. I cannot think of an offence of negligence—especially negligence in failing to discharge a duty of care rather than of omitting acts towards the victim—couched in that way. I cannot, for obvious reasons, imagine a prosecution under the Health and Safety at Work, etc. Act 1974 brought against a 13-year-old or a 12-year-old. In the same way, I find it difficult to imagine how, in reality, a 13-year-old, a 14-year-old or a 15-year-old is going to fulfil the criteria in paragraph (d)(i) to (iii) of subsection (1). I accept that the Minister may argue that if they do not fulfil those criteria, a prosecution will not be brought or will fail. However, we must be reasonable and put some outer limits on the way in 
 which the law operates. This group of amendments gives us the opportunity to consider what those outer limits should be. 
 Amendment No. 69 would get rids of the distinction between the mother or father and the carer. I would be interested to hear the Minister's justification for the maintenance of that distinction.

Vera Baird: I can see a distinction between a member of the household who is under 16 who is not the parent and who is likely to be preoccupied with their own juvenile activities and schooling, and so ought not to have a duty of care, and somebody of the same age who is the parent of the child and so must have a duty of care.

Dominic Grieve: We hope that the natural instincts that parents have for their children will give them an extra duty of care. However, as the hon. and learned Lady knows, the reality in dysfunctional households is that there will be extremely young parents below the age of consent for sexual relations who have brought babies into the world and there will be a wider household that is responsible for care. There are many inadequacies involved, and I find that the distinction starts to get fairly fuzzy.
 If I am working in any direction, it is of not removing the reference to the age of 16—the age of consent—and lumping everybody together, but putting a sensible bottom age limit on the offence. We should not prosecute children just because they happen to be parents. The interesting question is: what should the limit be? I assume that a household will contain adults. I seem to recollect—the Minister will correct me if I am wrong—that to leave a child in the care of another child under the age of 14 is already prohibited. Or at least, I recollect that it is generally held that people should not have babysitters under that age. I cannot remember exactly, or quote chapter and verse. I see heads shaking, but that age impinges on my consciousness. The Minister might like to go away and check it. Perhaps it is a guideline. Somebody may scribble a note to him and correct me. What is the age? Can we take that as a starting point? 
 The duty on the adults in the household may be other than that on the children. I simply put that point forward for discussion. However, I find it odd that, for carer defendants who are suspected of intimate involvement in an offence and are charged with negligence, there is a bottom age of 16, but defendants who happen to be the mother or father can be charged at any age above the age of criminal responsibility, which is now extremely low. The Committee must take that matter into account. I cannot get away from the view that the distinction is largely artificial. 
 Some very odd anomalies spring to mind. Some of the amendments relate to subsection (6), which states: 
 ''For the purposes of this section an ''unlawful'' act is one that— 
 (a) constitutes an offence, or 
 (b) would constitute an offence but for being the act of— 
 (i) a person under the age of ten''. 
 Sitting suspended for a Division in the House. 
 On resuming—

Dominic Grieve: Before the Division, I was about to highlight what I perceive to be potential anomalies in how the legislation might bite. Let me provide an example—it may be far-fetched, but far-fetched examples are sometimes useful when considering the scope of legislation. Let us suppose that a 14-year-old mother lives with her parents and siblings in a dysfunctional household that has a record of violence. Let us suppose also that some of the children have behavioural difficulties, particularly her eight-year-old sibling, who has a propensity for violent behaviour and is a danger to her baby, who is a few months old. If the sibling were to kill the baby—which is very likely in those circumstances—the baby's mother would be guilty of a criminal offence under the clause.
 That may be an extreme example, and the Minister may tell me that I am wrong, but I do not think that I have misread the way in which the clause works: that must be the impact of subsections (6)(a) and (b), although it seems a little far-fetched. I realise that there will always be extreme cases and a need to rely on the discretion of the prosecuting authority, but it is nevertheless incumbent on Parliament to try to draw reasonable boundaries. We have not yet succeeded in doing that; the age at which the negligence offence kicks in is too low, particularly in the case of a mother or father, and we should consider whether 16 is the right age generally. I do not see any grounds for making a distinction between offences. 
 I am also troubled by subsection (6) and the issue of who might cause the injuries. Subsection (6) provides that there can still be an offence of negligence when the likely perpetrator is a child under the age of 10 or someone who is insane. That seems to be an extraordinary state of affairs, although I can understand the reasoning behind that exception. This Committee, and Parliament, must be careful about how those boundaries are drawn. I look forward to the Minister's response with interest.

Hilton Dawson: I tabled amendments Nos. 70 and 71, and I support amendment No. 5.
 I agree that there are some problems with the way in which the clause affects children, who may be criminalised or come within the remit of the criminal process as a result. I join the hon. Member for Beaconsfield in expressing concern about whether the concept of parental responsibility is strong enough to carry the age distinction of which he spoke. The Government are trying to make it carry between those children who could be prosecuted under this clause, and those who could not. It is a difficult issue. That line of reasoning must be balanced against that expressed by my hon. and learned Friend the Member for Redcar: there is a distinction between children who are parents and their siblings who are not. It may be extremely important to recognise that distinction. 
 Various ages of criminal responsibility are cited in the clause and the amendments, reflecting our inadequate law on criminal responsibility. Amendment No. 5 suggests that responsibility for the offence should be confined to adults—those aged over 18. That is an important principle, which I believe could be applied across the criminal justice system. It is a fundamentalist principle, perhaps, but it recognises that children are children are children—people under the age of 18 are children. 
 Amendment No. 70 aims to raise the age of criminal responsibility for those committing unlawful acts under the clause from 10 to 13.

David Heath: I have interrupted the hon. Gentleman fairly early in his explanation of what he hopes to achieve by the amendment, because it does not seem to me that it does anything like what he is suggesting that it will do. The clause simply recognises the position of the law and identifies those offences that are unlawful acts for the purposes of the subsection (1). The amendment does not do anything to change the age of criminal responsibility.

Hilton Dawson: If the hon. Gentleman will give me a break, I will carry on with what I was saying. If he looks at amendment No. 71, which seeks to amend the Children and Young Persons Act 1933, itself amended by the Children and Young Persons Act 1963, by raising the age of criminal responsibility to 13, I hope that he will see what I am trying to do. I am prepared to be taken to task by those who say that this is an inadequate way to argue my position, but it is a strongly supported position, as I shall explain. I was aided enormously by the learned Clerk to this Committee, who went out of his way to assist me in making the points that I was trying to make in the amendments.

Dominic Grieve: I understand what the hon. Gentleman is trying to do, but I do not think that the amendments succeed in doing it. The mischief or otherwise of subsection (6)(b)(i), as I tried to explain, is that it provides that even if a five-year-old child had killed another child in the household, somebody might still be criminally responsible under the offence in subsection (5), notwithstanding the fact that it had been clearly established that the killer was a five-year-old child. The amendments that the hon. Gentleman has tabled would raise the age to 13, but would not alter the age of criminal responsibility under the Children and Young Persons Act. The point is that the age of criminal responsibility is neither here nor there for the offence of negligence by another person who should have been looking after the interests of the victim.

Hilton Dawson: I am grateful for that guidance. I hope that, when my hon. Friend the Minister hears the power and force of this principled argument, he will agree to take the proposal away and table suitable amendments that would achieve the end that we are, I hope, united in aiming for.
 We have heard a lot about how well amendments to the Bill have been supported by various organisations. My amendment is supported by no less a body than the UN committee on the rights of the child, which in 2002 urged the Government to raise the minimum age of criminal responsibility. There is good reason for the Government to do that: approximately 2,500 children are currently in custody in our country. Since 1997, there have been around 26 suicides of children in custody. Of course, those children committed criminal offences, no doubt since the age of 10, but they were uniformly needy, abused, neglected and extremely unhappy. They plainly needed care, support and attention, which they did not receive. This scandalous situation, which is a dreadful blot on the life of this country, must be a huge concern to every member of the Committee and every Member of this House. I hope that every Member of Parliament wants to begin to address this issue. 
 There is undoubtedly huge concern about the offending behaviour of children, and I do not seek to mitigate that very serious concern. The Government are responding to that in a serious and coherent way, but only up to a point. They are also responding seriously and coherently to child deaths in custody. There is no doubt about the compassion shown by the Minister or the Home Secretary, or about the steps that they have taken to address the monumentally serious issues affecting the Prison Service. However, we need a more fundamental approach. We need to consider restricting access to custody for children, as well as restricting the offending behaviour and criminal careers of young people. We can do that by raising the age of criminal responsibility and by keeping young people out of the prison system and the criminal justice system as far as we possibly can. 
 My proposal is not radical. Indeed, it is less radical than the legislation enacted by a previous, excellent and reforming Labour Government under an enlightened Home Secretary. Under the Children and Young Persons Act 1969, the age of criminal responsibility was raised to 14. Regrettably, however, that part of the Act was never implemented. I propose today that the age of criminal responsibility should be raised to the age of 13, which is in line with the Government's provision under the Sexual Offences Act 2003. The Government have made very clear statements that children under the age of 13 cannot consent to sexual intercourse or any other sexual activity. That is a fundamental issue of child protection. Raising the age of criminal responsibility is similarly fundamental. 
 I am not suggesting that we should underestimate the seriousness of children's offending behaviour; rather, there are more effective ways of dealing with it than through the criminal justice system. Nor do I want to inhibit an effective response to that behaviour. My proposal aims to ensure that we work effectively with children and their families to address and amend such behaviour and to stop them being drawn in to a criminal justice system that can in effect make them criminals and part of that system for life. 
 The Children Act 1989 provides us with the means to deal with children in welfare proceedings through child-centred proceedings and in effective ways. That may well result in the removal of children from their homes and their placement in secure accommodation for the protection of the public, but it would not put them into custody and would ensure that they were dealt with in child-centred systems.

Geoffrey Clifton-Brown: Although the hon. Gentleman's sentiments may be wholly laudable, surely raising the criminal responsibility for children is way outside the scope of the Bill? We are dealing with a very narrow clause and the age of a certain restriction for offences of negligence under the Bill. His comments are way out of that scope.

Hilton Dawson: I simply do not agree. This is not only the domestic violence Bill, but the crime and victims Bill. There are no greater victims of the criminal justice system than young people who have committed suicide in prison. I am trying to stretch the point, of course, but that is a valid thing for a Member of Parliament to do. I cannot believe that anyone would doubt the seriousness of the issue that I am bringing to the Committee's attention.
 Whatever we decide today, the Government will have to face the issue in the short term. A Government who are committed to the concept that every child matters and to transforming the prospects of children in our society will need to face it. A Government who are setting up the office of a children's commissioner must be aware that the matter will be one of the commissioner's top three priorities on assuming office. Before long, we will see a rise in the age of criminal responsibility. I would like to see it go beyond 13, but it certainly has to go a long way beyond 10. That would be to the benefit of all children affected by the Bill and all children generally.

David Heath: This is an interesting set of amendments. I have sympathy with the point made by the hon. Member for Beaconsfield about amendment No. 69. Notwithstanding the intervention from the hon. and learned Member for Redcar, parents who are under 16 may have different responsibilities from the run-of-the-mill under-16-year-old, but, nevertheless, they are still children. The fact that they have parented a child does not mean that they necessarily think or behave as an adult does, or do any of the things that one would expect of a person who is older and perhaps has a better developed sense of responsibility—although that does not apply to all older people. It is not entirely appropriate to expect a wholly different response to a given set of circumstances simply because that young person is the father or mother of a child in the case. One would hope that that would be so, but one could not expect it to be so in legal terms.
 I accept the argument that we should not expect a level of behaviour from children that is beyond reasonable expectation. That goes back to our argument about what is reasonable and what can 
 reasonably be expected. Children are in a different category. The fact that they happen to be the parents of the child in question does not alter the mental capacity of the young person. Therefore I see some merit in amendment No. 69. 
 Amendments Nos. 5 and 6 are obviously probing amendments because they tend in opposite directions, which usually suggests an intention to discover what the Minister thinks. However, were I to be given the choice, I think that I should set the age exactly where the Government have done. 
 I was upbraided royally by the hon. Member for Lancaster and Wyre in debate on a previous group of amendments for daring to suggest that someone who was mentally or physically incapacitated and could not reasonably be expected to know that harm was being caused might be treated differently by a court; I was told that that would undermine the whole point of the clause. I am therefore surprised to learn that he thinks perfectly sensible and reasonable 17-year-olds should be exempted from the effects of the clause. 
 I cannot reconcile those two views. It is difficult, having experienced the degree of passion that was directed at what I thought was a perfectly sensible suggestion, to find it argued with equal passion that a 17-year-old should have no responsibility at all for preventing the death of a child in a household of which they are a member. What the hon. Gentleman said previously is correct: every single person—and I include 17-year-olds—should have regard to the care of vulnerable children in their sphere of influence, and should take whatever steps are appropriate for their protection.

Hilton Dawson: I do not want to extend the point and take up more of the Committee's time, but I hope that the hon. Gentleman would accept that in trying to keep children from criminal responsibility I did not intend that the average 17-year-old should have no personal responsibility for dealing with such matters. I simply think that children should be treated differently from adults.

David Heath: I think that people who are incapable of coming to a reasonable view about the harm that might be done to a victim should be treated differently, too. We shall now have to accept that we agree; or perhaps we do not. It does not really matter.
 The hon. Gentleman put forward, in speaking to amendments No. 70 and 71, a perfectly proper argument for a change in the age of criminal responsibility. However, I cannot for the life of me see what that has to do with the Bill. I had hoped that he wanted to amend clause 5(6). It is now transparently obvious that that is not his intention. He is simply using that as an entry point for making a speech about something that we have debated at length in proceedings on other Bills. 
 A great deal of time was spent in considering the age of criminal responsibility in deliberations on the Criminal Justice Act 2003. I do not disagree with the premise that the age of criminal responsibility in this country is wrong, but I do not believe that the hon. Gentleman is using the right vehicle to extend the 
 argument. In particular, I do not believe that amendment No. 70 serves any useful purpose in the context of the Bill. 
 As the hon. Member for Beaconsfield said, all that the subsection does is define an unlawful act for which a person of the relevant age can be held criminally responsible if they have failed to take reasonable steps to prevent it. Changing the age from 10 to 13 in the definition of an unlawful act makes no difference to the consequence for a person charged under the proposed new offence. 
 I suspect that the Minister will reject all the amendments and continue from exactly the present position. I think that there are some arguments for doing that. It will be interesting to hear them.

Paul Goggins: On that optimistic note, I welcome the fact that the amendments are before the Committee. They give us the opportunity to have a sensible discussion about the age at which the offence should begin, and to look at what increased responsibilities there might be for parents—even parents aged under 16.
 The offence begins at the age of 16, and we believe that that is correct for the same reason that the Law Commission gave, which is that current child cruelty legislation begins to hold a person responsible for a child in their care once they are 16. There is considerable value in making sure that there is consistency with the Children and Young Persons Act 1933. The NSPCC, which contributed much to the Law Commission's thinking in this area, also agreed that 16 is the right threshold. 
 Carers' legislation also allows a person to be the carer of a vulnerable adult at the age of 16. It would not be compatible with that to raise the threshold for the new offence to 18. We appreciate that our offence goes wider than carers and covers all household members aged 16 or over, but it is justified and reasonable to expect those who have reached the age of 16 to take some responsibility when a child or a vulnerable adult in the household that they belong to is at significant risk of serious harm. After all, that is the age at which people can leave school, marry, and do many other things. I must stress that the steps people are expected to take will only be those that are reasonable for them. 
 Only those aged 16 or over may be guilty of the offence, unless they are the mother or father of the victim. A child under the age of 16 will not be considered to have a duty to prevent their parents from harming a sibling or other member of the household. We think that that is a reasonable and necessary safeguard. To lower the age of responsibility to 14 years for all members of the household would be a step too far; 14-year olds in this position will have limited opportunity and autonomy to take reasonable steps to seek protection. 
 Amendment No. 69 takes us to a group of people and a range of situations that are small in number, but the principle involved is very important. It would remove the protection of the new offence from children 
 whose parents are under 16, but we think that such parents should take reasonable steps to protect their child. 
 To refer to an interesting exchange during the debate, I agree with my hon. and learned Friend the Member for Redcar that there is a distinction between under-16s who are not parents and under-16s who are parents. It is right that a greater duty of care and responsibility towards a child should fall to the parents, whatever age they happen to be. Society recognises that.

Dominic Grieve: It seems that the Minister's argument is internally contradictory. I think that he is right that 16 should be the start of the age of criminal responsibility under clause 5; that is approximately appropriate. He said that a child under 16 would be unable to protect a sibling from its parent's activity. Why should a 14-year-old mother with a three-month-old baby who is living in a household in which whoever was the father is probably not present be in any better position to protect her child against, for instance, the activities of her stepfather? There is a lack of logic, and that worries me. I do not see the distinction between the child who happens to be the parent and the child who happens to be the carer.

Paul Goggins: We are dealing with difficult scenarios, but the simple fact is that the relationship is different; the responsibilities of a brother or sister of somebody are different from those of the parent. Whether or not they are under or over 16, the fact that they are a parent carries some additional responsibility.
 We return, as we have a number of times, to the point that the offence only requires people to do what is reasonable in the circumstances. The hon. Member for Beaconsfield gave what he described as an extreme example and the hon. Member for Somerton and Frome built on it. All that will be expected will be what is reasonable in the circumstances. 
 The age and maturity of the defendant will be among the factors taken into account by the court when it decides what steps it might have been reasonable for him or her to take to protect the victim from harm. Obviously, if the age of the parent is 14, that will be considered. However, we do not take away from people the responsibilities of a parent.

Dominic Grieve: It is not a question of taking away responsibility. One hopes that a 13-year old who is the father or mother of a child will have some responsibility towards it. One hopes that a 15-year-old who is the sibling of another child will take some responsibility for it too. It is common for siblings to care for others in an extended family unit. However, having responsibility and being criminally liable under clause 5 are not the same thing. What is the justification for the distinction in criminalisation in clause 5? If the Minister is right to say that a 14-year-old parent has a responsibility that should be visited with criminal sanction if it is not properly exercised, what about the 14-year-old sibling who allows the
 stepfather, whom they know to be predatory and violent, to kill their sister or brother? I do not see the logic, and I do not think that it is right.

Paul Goggins: I am listening carefully to the hon. Gentleman's argument. The point is that being a parent carries responsibilities. Whatever the age of the parent, those responsibilities cannot be removed. In the context of this offence, of course consideration will be given to the maturity, age and circumstances of the individual. However, we cannot wipe out parental responsibility because somebody happens to be under the age of 16. The more I argue the point, and the more deeply I think about it, the more I am convinced that I am right, even though the hon. Gentleman clearly does not agree. We shall return to the matter in due course. On this, as on other things, I shall reflect and read carefully the report of our exchanges.

Hilton Dawson: I am trying to think of another context in which parental responsibility, that crucial concept, implies a criminal responsibility, and I cannot. The hon. Member for Beaconsfield is on to a serious point. Of course, there is a civil responsibility, but does it necessarily mean that children who are parents should be criminalised?

Paul Goggins: My hon. Friend might have been wide of the mark on some of the points that he made earlier—I shall come to those shortly—but he is not wide of the mark in raising that issue and joining it with other points that have been made. I undertake to think a little more about it. I stand by my comment that everybody who is a parent has responsibilities, but my hon. Friend has asked how that should be applied to criminal matters. Rather than say something speculative, I shall reflect on it and will find another opportunity to outline my thinking.
 Amendment No. 9 would remove an important element of the offence. I am glad that we have had the chance to debate it. We would not want the presence in a household of one person who lacked criminal responsibility to mean that the other members of that household could not be prosecuted. If the victim died as a result of the action of a person lacking criminal responsibility—somebody aged eight, for example—that would not absolve the person who was aware of the risk and did not take reasonable steps to prevent the harm. If the amendment were accepted, other members of the household would escape prosecution, even though they might be culpable. 
 Whether my hon. Friend the Member for Lancaster and Wyre is wide of the mark or stretching a point, he never misses an opportunity to raise the issues set out in his amendments. We invariably end up disagreeing, although—I hope—in an amicable spirit. He asked us to consider whether the age of criminal responsibility should be set at 10 or at 13. He always proposes that it be set at 13. As he knows, there is considerable evidence that children start offending much younger even than 10. I quote to him last year's youth lifestyle survey, in which one in eight offenders said that they started their criminal behaviour at the age of seven or 
 younger. Offending behaviour often accelerates between the ages of 11 and 13. In our judgment, most young people of that age are mature enough to know the difference between right and wrong. 
 It is also crucial to set the age of criminal responsibility at 10 because it means that we can intervene at an earlier stage than would otherwise be the case. My hon. Friend was generous enough to note how effectively the Government are intervening on youth justice. We are keen to divert young children away from the formal criminal justice process. We have developed a system of reprimands and final warnings that does precisely that. The youth offending teams at local level now work closely and collaboratively with us to make sure that our interventions with young offenders are effective. 
 So, we try to divert young children from the courts and from the criminal justice system and, of course, we try to divert them from crime. That is not an argument for setting the age of criminal responsibility at anything other than 10. In the usual friendly spirit, I ask my hon. Friend not to press his amendments and to ask other hon. Members to do likewise.

Dominic Grieve: This has been a fascinating debate. The Minister has satisfied me on a number of points. I think that 16 makes sense as a normal start age. I still raise the question, and I would be interested in a reply if the Minister can find it—

Paul Goggins: We have consulted a little and will need to consult more on that question. I will write to the hon. Gentleman and to other hon. Members.

Dominic Grieve: In case that appears cryptic in the Official Report, let me say that we are discussing the age at which it is permissible to leave a child to look after other children. I thought that that age was 14. If I am wrong about that, it will be interesting. If that age is 14, it is rather different from the age that we will impose here, which is 16.

Paul Goggins: We now have the additional help of my right hon. and learned Friend the Solicitor-General, who gives an authoritative view on the matter. As we have consulted, some slightly different views have been expressed. She is, I am sure, right, but we want to check.

Dominic Grieve: I am reassured that the Solicitor-General takes the same view as I did without any reliance on authority. Perhaps the Minister should think about the implications that flow from that. We will have the bizarre situation of a rule that a 14 or 15-year-old may be left in charge of children and, one would assume, have a degree of responsibility, yet they have not reached the age of criminal responsibility under clause 5(4). That may an anomaly that we can live with, but, if it is correct, it is an interesting curiosity. I think that the Solicitor-General is right, because it was also my recollection that the relevant age is 14.
 I return to the question about the mother or father having a different age of responsibility. Indeed, the age of responsibility is, in that case, undefined. I appreciate 
 the Minister's point that one would expect the mother or father of a child to take a particular care for them irrespective of their age, but I think that we must be realistic about what goes on in households where there are very young parents. I find it a slightly artificial distinction. We must bear in mind the facts. We are not talking about a 14-year-old murdering their child. If there were evidence of that, the 14-year-old would be prosecuted for murder. We are talking about Parliament creating a specific offence that relies on negligence as its foundation, although it is, admittedly, intended to get round certain problems with convicting people. I find that distinction unrealistic, particularly given that we may be talking about the ability of a 14-year-old to take effective steps when someone else in the household may be causing harm to their child. I hope that the Minister will go away and consider the issue. 
 The final point on which we touched was that a person could commit an offence even if they were under the age of 10 or entitled to rely on the defence of insanity. I appreciate the Minister's position, which is probably correct, but we must be realistic—certainly in the case of a defence of insanity. There are psychotic adults living in many households, and I have several in my constituency. They often receive pretty paltry care from the national health service and regularly go in 
 and out of hospital. Such people are potentially a threat to members of their families. I realise that defences are available under subsection (1)(d), but the Committee should bear in mind the possible consequences of saying that other members of the household could be criminalised for the acts of someone who is insane. I suspect that that we shall end up with some prosecutions and some interesting defences, and I hope that the Act will work. 
 As I said to the Minister at the outset, the clause was originally intended to meet a very precise set of facts. It is fascinating, although perhaps inevitable, that we have ended up with a negligence offence of potentially very wide import. Indeed, I wonder whether that was the original intention in drafting the legislation, which is much wider than I would have expected. I can see, however, that an inexorable logic may have lead to the offence being drafted in its present form. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 5, as amended, ordered to stand part of the Bill. 
Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at two minutes to Six o'clock till Thursday 24 June at ten minutes past Nine o'clock.